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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-05-08] British Columbia. Supreme Court May 8, 1990

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 25753  Submission by Mr. Jackson        1  Vancouver, B.C.  2 May 8, 1990  3  4 THE REGISTRAR:  Order in court.  In the Supreme Court of British  5 Columbia, this 8th day of May, 1990, Delgamuukw versus  6 Her Majesty the Queen at bar, my lord.  7 THE COURT:  Thank you.  I thought we would sit from 9:00 to  8 10:00, from 10:15 to 11:15, and from 11:30 to 12:30,  9 if that's convenient.  Mr. Jackson.  10 MR. JACKSON:  Yes, my lord.  I had started an analysis of the  11 various ways in which the competing systems of  12 authority or jurisdiction operated, so to speak, on  13 the ground in the course of the last century, and I  14 was at page 75 of the argument under the general  15 heading of education and social services.  My lord,  16 evidence of the education of Gitksan and Wet'suwet'en  17 children by non-Gitksan and Wet'suwet'en educational  18 authorities has shown how in the past these  19 authorities have been used to repress important  20 elements of the Gitksan-Wet'suwet'en organized  21 society.  22 THE COURT:  Well, how can I deal with that, Mr. Jackson?  What  23 evidence is there of that?  2 4 MR. JACKSON:  My lord —  25 THE COURT:  A few people mentioned that in their particular case  26 that was so.  27 MR. JACKSON:  Well, my lord, what I submit is that those  28 individual cases are, in fact, part and parcel of a  29 clearly established pattern of various educational  30 authorities seeking to change Indian values and  31 particularly Indian language.  We're not asking your  32 lordship to make a ruling on that fact, nor are we  33 asking your lordship to cast blame or responsibility  34 one way or the other.  The point of raising it is only  35 in the context to show how, in fact, the Gitksan and  36 Wet'suwet'en hereditary chiefs have sought to  37 accommodate and to incorporate their own educational  38 values and authority into that of other educational  39 authorities, and that is the purpose of this material,  40 my lord.  It's not to ask your lordship to render  41 judgment one way or the other on the rights or wrongs  42 of what went on, but to point out that regardless of  43 what other authorities did the Gitksan and  44 Wet'suwet'en have sought to maintain and establish  45 their own core institutions in this area as in others.  4 6 THE COURT:  But there's a whole body of young people who aren't  47 represented here, and I'd be making a declaration of 25754  Submission by Mr. Jackson        1 some sort that would  affect them, if not bind them, in  2 their absence.  3 MR. JACKSON:  My lord —  4 THE COURT:  I don't see how I can do that.  You see, I'm having  5 a terrible time bringing this part of your submission  6 into the area of justiciable issues.  7 MR. JACKSON:  Well, let me see if I can explain, my lord, what  8 it is we are not asking you to do and what it is we  9 are asking you to have regard to in this body of the  10 evidence.  Yesterday your lordship raised the question  11 would the declaration which the plaintiffs are seeking  12 in relation to a right to self-government, to govern  13 themselves, your lordship raised the question, well,  14 does that mean that the Education Act of British  15 Columbia somehow doesn't apply to them.  16 THE COURT:  Yes.  17 MR. JACKSON:  This evidence, my lord, I'm about to bring to your  18 lordship's attention is designed to show how, in fact,  19 hereditary chiefs have sought to work both within  20 their own system and within the educational systems of  21 both the province and the federal government.  22 THE COURT:  But so has the Catholic Church, so has the Anglican  23 Church, so have the Jehovah Witnesses, so has the  24 Chinese community, so has all sorts of communities.  25 How is that to be expressed in a judgment of the  26 court?  27 MR. JACKSON:  We say, my lord, that the evidence of what the  28 hereditary chiefs have done is not the same kind of  29 evidence as to what other voluntary associations, be  30 they church or be they school boards, parents'  31 associations, that the efforts of the hereditary  32 chiefs bespeak a long-held and transmitted  33 responsibility to have regard to the interests of  34 young people as the repository both of information,  35 heritage, and the hopes for the future.  In that sense  36 it is distinctive, my lord.  Aboriginal peoples, as  37 some of my colleagues have made before, are not the  38 same as other voluntary associations.  Other voluntary  39 associations do not look to common law aboriginal  40 rights or any other kind of rights based upon pre-  41 existing matters prior to the assertion of sovereignty  42 to justify and found their rights to govern  43 themselves.  44 THE COURT:  Well, I think that what I have to say, Mr. Jackson,  45 is that until I see what it is that you want me to  46 declare and the language of the order that would be  47 entered consequent upon such a declaration, I am 25755  Submission by Mr. Jackson        1 unable to understand  your argument or to see how it  2 can properly be a submission that falls within the  3 area of justiciability even in a case as broad as this  4 one.  I am just unable to comprehend the legal  5 consequences of what you're submitting.  6 MR. JACKSON:  Well, my lord, let me try and put it this way.  In  7 terms of this particular evidence in relation to what,  8 for example, Joan Ryan, Chief Hanamuxw, has done in  9 pursuit of her understanding of her responsibilities  10 as a hereditary chief, that is intended and is led as  11 evidence, and our submission is based upon that, are  12 intended to show that the hereditary chiefs have a  13 responsibility and an authority in the area of  14 training and education.  The way in which that has  15 been exercised in the past has been in terms of  16 training in the areas of the oral histories, training  17 in the areas of particular patterns of knowledge and  18 understanding which relate Gitksan and Wet'suwet'en  19 people to the natural world to each other within a  20 kinship society.  What we are saying is that those  21 responsibilities in a contemporary world extend also  22 to working out with other authorities, be they federal  23 or provincial, an accommodation so that the  24 traditional training of Gitksan and Wet'suwet'en  25 people is made relevant and contemporary in the  26 context of a modern world.  27 THE COURT:  Well, are you asking for an order, a mandatory order  28 that the chiefs discharge that responsibility?  29 MR. JACKSON:  No, my lord.  What we are seeking is a declaration  30 which recognizes the rights of the chiefs to govern  31 themselves and their members of their houses in the  32 context of the way they have done to date in the  33 framework of non-coercive society.  We are not seeking  34 a declaration which says that the Gitksan and  35 Wet'suwet'en have the exclusive responsibility in  36 relation to all matters pertaining to education and  37 that the province has no responsibilities in relation  38 to that.  This evidence is designed to show how there  39 are —  40 THE COURT:  But you said that they're entitled to govern  41 themselves and their members.  42 MR. JACKSON:  Yes, my lord.  43 THE COURT:  How can I make such an order in view of the  44 difficulty that -- the procedural difficulties about  45 persons under disability and the lack of what I would  46 say is a clear notice to all Gitksan members that this  47 is being sought?  I don't think -- I don't think that 25756  Submission by Mr. Jackson        1 it is sufficiently  pleaded to give rise to a  2 declaration.  There may be, as I've said before,  3 Gitksans who -- Gitksan persons and Wet'suwet'en  4 persons who say, "I don't want any part of what you're  5 talking about."  I don't know whether there are or  6 not.  7 MR. JACKSON:  Well, that is a point, my lord, we are going to  8 come back to, as I indicated last night, in response  9 to those other questions your lordship raised.  10 THE COURT:  You see, I have evidence of a chief who said, "I'm  11 not going to discharge my chiefly duties."  He was  12 replaced.  I think there's an example of one of that  13 kind.  I forget who he was.  But I am just unable -- I  14 am unable to come to grips with your proposition, and  15 I'd be less than fair if I didn't tell you so.  But  16 you're entitled to go ahead --  17 MR. JACKSON:  Well, my lord —  18 THE COURT:  — and persuade me.  19 MR. JACKSON:  I'm reluctant, obviously, to proceed in the  20 absence of some clear consensus as between us as to  21 the purpose of the evidence, and as I say, it is to --  22 as is much of the evidence in this part of the  23 argument, which I started last night, it is not  24 intended to document any exclusivity of jurisdiction  25 in particular areas.  26 THE COURT:  But, you see, that's the problem I have.  If it's  27 not exclusive, then it seems to me anybody can do it,  28 and you don't need a declaration.  Unless I make it  29 exclusive or unless I make it mandatory, well then, it  30 must be voluntary.  31 MR. JACKSON:  But, my lord, the purpose of the declarations we  32 are seeking in this case are not declarations  33 primarily directed to other Gitksan and Wet'suwet'en.  34 Other Gitksan and Wet'suwet'en are not defendants in  35 this case.  This case seeks declarations vis-a-vis  36 these defendants, and in that sense declarations of a  37 right to self-government have, we submit, direct  38 effect in terms of the conduct of the defendants in  39 how they deal with the plaintiffs either in the  40 context of negotiations or in any other context.  And  41 the declarations of this court do not and will not  42 have a preclusive effect on the conduct of individual  43 Gitksan and Wet'suwet'en.  44 THE COURT:  Well then, you are seeking an order that would  45 enjoin the defendants from interfering with the  46 authority of the chiefs to regulate the social  47 organization of the Gitksan and Wet'suwet'en people? 25757  Submission by Mr. Jackson        1  MR. JACKSON:  Where to do so  would be inconsistent with that  2 social organization.  And there are many areas, my  3 lord.  Yesterday you gave the example of traffic  4 regulations.  There's nothing inconsistent with the  5 traffic laws which the provincial defendants have put  6 in place, nor with regulations which the federal  7 government have put in place in relation to airports,  8 for example, which somehow impede in any fundamental  9 or integral way the operations of the organized  10 society of the plaintiffs.  11 If I can go back to the education example, my  12 lord, the examples in the evidence of in the past how,  13 in fact, educational authorities, for example, have  14 sought to repress the speaking of native languages in  15 school, if that were to continue today, my lord, if  16 the province, for example, sought to do that, and, of  17 course, I'm not in any way suggesting the province  18 does seek to do that --  19 MR. GOLDIE:  I'm glad my friend acknowledges that, my lord,  20 because there is no evidence that in the educational  21 system any of these things which my friend is talking  22 about exist today.  In fact, there is evidence that  23 the first integrated high school in British Columbia  24 is at Hazelton.  There is evidence that there is a  25 development of the Gitksan alphabet in a primary  26 school.  The ills, if one wants to speak of it that  27 way, and I don't choose that word, of yesterday have  28 no application when it comes to a declaration that has  29 a mandatory effect.  30 MR. JACKSON:  My lord, I was -- my caveat there, not suggesting  31 that the province has done that or does that today,  32 was by way of illustration that if, as in the past,  33 that were to happen, if a provincial educational  34 authority were sought to be imposed upon the Gitksan-  35 Wet'suwet'en which was aimed at supressing their  36 language, then we would say that at that point the  37 province was, in fact, intruding in a very fundamental  38 way upon something integral to the organized society  39 of the Gitksan and Wet'suwet'en.  40 THE COURT:  Aren't you, in effect, seeking to put an order of  41 this court above the Charter?  Because if something  42 like that was done, if the School Act was amended to  43 say no Gitksan would be spoken in schools of British  44 Columbia, I would think there would be an immediate  45 Charter challenge, and they would first determine has  46 there been a right violated, and if there has, it  47 would then require whether it's a reasonable 25758  Submission by Mr. Jackson        1 limitation on that  right, and a declaration would be  2 made accordingly.  But if I make the declaration  3 you're seeking, it seems to me that at least the  4 second branch of the Charter investigation would be  5 foreclosed, perhaps even the first one.  6 MR. JACKSON:  Well, my lord, Section 35 is placed outside of the  7 Charter.  It was done so presumably for very good  8 reasons in that aboriginal rights, while they have a  9 common law base, have, in fact, a basis in terms of  10 pre-existing rights.  The framers of the Constitution  11 Act presumably had good reason to locate Section 35  12 rights as something other than rights of freedom of  13 religion or freedom of association.  And, of course,  14 the scope of Section 35 rights and the extent to which  15 they are subject to modification by federal/provincial  16 governments is the subject matter in particular case  17 law which Ms. Mandell will be addressing you on.  18 But again, my lord, the purpose of this evidence  19 is not to seek a declaration that the plaintiffs have  20 an exclusive right to set up their own schools to the  21 exclusion of the province.  This evidence is being  22 brought to your lordship's attention to rebut the idea  23 that somehow the Gitksan and Wet'suwet'en social  24 system, the institutions of the Gitksan and  25 Wet'suwet'en have been overtaken, overshadowed to the  26 point of legal eclipse by provincial agencies.  And to  27 that extent what I have sought to do, my lord, and if  28 I could take you to the evidence of Chief Hanamuxw at  29 page 82, I have tried to -- Chief Hanamuxw herself  30 related her experience as a teacher, not to the  31 development of an exclusive Indian education system.  32 THE COURT:  But, Mr. Jackson, what troubles me so much is that  33 there's nothing to stop them from doing that.  I  34 didn't mention a moment ago the Jewish community  35 operate their own schools, several of them, in  36 different branches of -- different degrees of  37 orthodoxy in that faith.  The East Indian communities  38 have their own schools.  The Japanese have their own  39 schools.  As I said before, the Catholics, the  40 Italians, the Jehovah Witnesses.  They all have the  41 rights which I think you are contending.  No one  42 interferes with them, and if they did, I should think  43 the interference would easily be stopped.  I think  44 that in order to give effect to your submission I  45 would have to have very great specificity as to what  46 provincial statutes you wish me to declare  47 non-operative to Gitksan persons.  I just don't see 25759  Submission by Mr. Jackson        1 how I could deal with  your proposition any other way.  2 MR. JACKSON:  Well, my lord, that's something we will be coming  3 back to you on.  In response to the question of why  4 can't the Gitksan do what other communities do in  5 terms of the communities you've identified, one of the  6 problems, and it's a problem which is identified by  7 Glen Williams in material which I've set out at page  8 86 through to 87, is that the efforts of the Gitksan  9 and Wet'suwet'en to set up their own school systems or  10 to introduce elements of their own distinctive values  11 into the school system has in the past been hampered  12 and is hampered today by the lack of an economic base.  13 I mean, those other communities, my lord, have by  14 virtue of being part of the mainstream society  15 resources available to them.  Mr. Williams and other  16 witnesses have related the fact that if the  17 declarations which the plaintiffs seek in relation to  18 the resources of the territory are the subject of your  19 lordship's judgment, that will provide part of an  20 economic base upon which Gitksan and Wet'suwet'en can  21 build up their own distinctive institutions so that  22 they are economically and culturally self-sufficient.  23 The point of --  24 THE COURT:  But surely you're not asking me to make a  25 declaration that would give your clients an economic  26 base and then tell them how to --  2 7 MR. JACKSON:  No, my lord.  28 THE COURT:  — how to spend it?  29 MR. JACKSON:  No.  What I'm trying to relate is that there is a  30 relationship between the dispossession of the Gitksan  31 and Wet'suwet'en over the years and the undermining of  32 their resource base through alienations by the  33 provincial defendant.  34 THE COURT:  I have no trouble with that because you're back to  35 land, and that I can deal with.  36 MR. JACKSON:  But in this part of the argument, my lord, we are  37 trying to show how, in fact, the de facto inability to  38 make decisions as to the beneficial use of resources  39 does have, in fact, direct relationships to certain  40 social and economic problems of the plaintiffs, which  41 they have tried to address through their own  42 institutions, through seeking to accommodate their own  43 cultural values, their own institutional sources of  44 authority with those of the province.  45 The material, my lord, on the way in which the  46 education of young Gitksan and Wet'suwet'en has taken  47 place within a framework of attempted accommodation is 25760  Submission by Mr. Jackson        1 there for your  lordship, and I intend at this point to  2 pass to something else.  3 THE COURT:  All right.  Thank you.  I hope that I have not  4 indicated that or said anything that indicates that I  5 don't understand what you're submitting.  It's just  6 that I have an enormous difficulty in grappling with  7 it in justiciable terms.  8 MR. JACKSON:  Yes, my lord.  I think, my lord, if I could just  9 refer you to the bottom of page 88, where Mr. Williams  10 sort of makes this point.  Having talked about the  11 efforts of the Gitksan and Wet'suwet'en to build up  12 their own educational resources through training and  13 forestry management, fishery management, as well as  14 complimenting the work of Chief Hanamuxw in providing  15 native teachers with the distinctive kind of training  16 which is necessary to deal with the problems native  17 children face when confronting the educational system,  18 Mr. Williams said:  19  20 "If we are given -- if we had our own land base  21 back...the chiefs and their house would be  22 responsible for providing housing to their own  23 people in their house and dealing with other  24 problems and ensuring that their house members  25 are dealt with and not to be suffering from  26 social and housing problems that we have today.  27 Their resources for them would be there.  They  28 would have a good economic return from their  29 territories, which is rightfully theirs."  30  31 That's the solution that the chiefs discuss  32 extensively.  So he is relating the perceived and real  33 economic and social problems of the plaintiffs to the  34 efforts of the chiefs to build up the technology, as  35 it were, of education to make it responsive to the  36 distinctive values of native people in the same way as  37 in coming to this court and seeking a recognition of  38 the inherent jurisdiction of the chiefs, in seeking a  39 recognition of their inherent rights to ownership of  40 the territory.  The combination of that recognition  41 will, as it were, renew the strength and integrity of  42 the Gitksan and Wet'suwet'en houses.  43 My lord, at page 89 and the following pages the  44 argument tries to come to grips with some of the  45 evidence your lordship has heard regarding the efforts  46 of the plaintiffs in relation to land stewardship and  47 logging, and you'll recall evidence that there has 25761  Submission by Mr. Jackson        1 been the establishment  of various logging activities  2 on Gitksan and Wet'suwet'en lands both in terms of  3 reserves and in relation to lands outside of reserves.  4 And if your lordship would look at page 91, I refer to  5 the evidence of Mr. Mathews, who testified as to the  6 establishment of the sawmill now owned by Westar on  7 the Kitwanga Reserve in 1970, and there are two things  8 which I will draw your lordship's attention to:  that  9 that, even though it was established on a reserve, was  10 one done with the consultation of the hereditary  11 chiefs; and secondly, that it was done to deal with  12 the chronic problems of unemployment with which many  13 of the reserves were and continue to be afflicted.  14 At page 94, my lord, I also -- and the intervening  15 pages try to come to grips with and explain the  16 apparent conflict between Gitksan and Wet'suwet'en  17 working for a logging company which logs other houses'  18 territories and using the resources in the context of  19 the feast.  A similar conflict or apparent conflict  20 between the existing system of authority and ownership  21 and the provincial system is identified at page 94 in  22 relation to the Moricetown logging and sawmill  23 enterprise, and your lordship will recall that that  24 logging operation started out using reserve lands.  25 When those lands proved inadequate to support the  26 continuing economic viability of the logging  27 operation, the band and the hereditary chiefs were  28 faced with the very great problem of how to continue  29 the business and maintain their own authority,  30 maintain their own ownership but given the fact that  31 no logging would be permitted by the province without  32 the obtaining of the requisite provincial permits, and  33 the evidence traces how, in fact, the band council, in  34 fact, did obtain a provincial timber sale licence.  35 And these pages of the evidence document how in coming  36 to that decision the band did not simply, as it were,  37 usurp the authority of the hereditary chiefs.  This is  38 not an example of the traditional system having passed  39 away in the face of an overwhelming provincial  40 authority but rather is an example of how the band  41 council consulted with the hereditary chiefs; how, in  42 fact, the expanded logging operation, to the extent it  43 took place on Wah Tah K'eght, that's W-a-h, new word,  44 T-a-h K-'-e-g-h-t, on Wah Tah K'eght's territory, that  45 was done with consultation and with the express  46 consent and approval of Chief Wah Tah K'eght.  47 And at page 96 I have set out the evidence of 25762  Submission by Mr. Jackson        1 Chief Wah Tah Keg'ht,  Henry Alfred, over on page 97,  2 where, in fact, he says that he did give consent, but  3 he did so in the very constrained circumstances facing  4 his people.  He identifies the high unemployment, and  5 he identifies the fact that if he did not give  6 consent, the timber licence would have been granted to  7 someone else, and, therefore, the wealth and resources  8 of the Wet'suwet'en would have been drained away by  9 non-Wet'suwet'en, and, therefore, his decision to  10 allow the band council to apply for the licence to log  11 his territory was done, as it were, as a compromise.  12 It was consistent with a process of consultation and  13 seeking his authority, but in many ways the method of  14 logging, to the extent it involved clear-cut logging,  15 was not consistent with the ways in which the  16 Wet'suwet'en would have preferred and indeed the ways  17 in which they would log if their rights to ownership  18 of the territory were recognized by this court.  And  19 I've set that out at page 97 and 98.  20 My lord, at page 100 -- at page 100, my lord --  21 THE COURT:  How is the sawmill doing?  22 MR. JACKSON:  Mr. Grant, I think, is a better authority on the  2 3 sawmill.  24 MR. GRANT:  I'm sorry, what is it?  25 THE COURT:  At Moricetown.  26 MR. GRANT:  What is it doing?  27 THE COURT:  How is it doing?  28 MR. GRANT:  It was burned, part of it was burned in a fire, but  29 it's operating, one part of it.  It is functioning  3 0 now.  31 THE COURT:  Sawmills seem to burn up with incredible regularity  32 in this province.  33 MR. GRANT:  There's three mills that have burned in Hazelton in  34 the last year.  35 THE COURT:  My dad had three mills burn out from under him in  36 three years.  Fortunately, he didn't own any of them.  37 MR. JACKSON:  Yes.  Courtrooms have a better history of —  38 THE COURT:  Yes, they do.  Much more stable.  39 MR. JACKSON:  -- maintenance in the face of adversity.  4 0 THE COURT:  Yes.  41 MR. JACKSON:  The material at page 100, my lord, deals with a  42 problem which your lordship has raised on various  43 occasions, and it relates to the way in which the  44 system of hereditary chiefs interacts with the band  45 councils.  And my friends in their arguments have  46 submitted that in terms of an organized society, to  47 the extent that the tests of aboriginal title require 25763  Submission by Mr. Jackson        1 that there be an  organized society, the character-  2 ization which the plaintiffs have placed upon their  3 organized society, insofar as it builds upon the  4 houses as the basic unit, is a mischaracterization and  5 that to the extent that there is a unit of organized  6 society, there's the bands, and to the extent there is  7 a governing body, it is the band councils as  8 established under the Indian Act.  And this material,  9 my lord, seeks to bring together various parts of the  10 evidence in which witnesses have sought to explain the  11 way in which their existing system of authority, the  12 hereditary chiefs and the feast system, how that works  13 in relationship to the band councils, and what this  14 evidence shows, my lord, we say, is that the band  15 councils and the hereditary chiefs have worked in  16 balance, they have sought -- band councils have seen  17 their role as being limited to particular kinds of  18 responsibilities, particularly responsibilities to do  19 with life on the reserve and to do with community  20 services and amenities on the reserve, and that the  21 hereditary chiefs' responsibility has not been  22 replaced and supplanted by band councils, and that  23 those responsibilities relate primarily to the  24 territories outside of the reserves and matters  25 dealing with jurisdictional responsibility outside of  26 the reserves, but that even in relation to the  27 reserves there is co-ordination, and the band councils  28 look upon themselves as acting under the advice of and  29 as subordinate agencies to the hereditary chiefs.  30 And I've related there the evidence of James  31 Morrison, Vernon Smith, Ms. Wilson Kenni, and Alfred  32 Joseph, all of whom with experience both as band  33 councillors, in some cases chief councillors, and as  34 hereditary chiefs, are able to articulate the nature  35 of the relationship between their responsibilities on  36 the one hand as a band councillor, on the other hand  37 as an hereditary chief.  And we say, my lord, that  38 there is no conflict between those, that the band  39 council system, even though it is not a system of the  40 plaintiffs' own making, is one which they have sought  41 to incorporate into and they have sought to make work  42 consistent with their existing systems of authority.  43 In the same way, my lord, we say that the  44 development of institutions such as the Gitksan and  45 Wet'suwet'en Tribal Council and the current Gitksan-  46 Wet'suwet'en office of hereditary chiefs are not new  47 developments which replace the central and fundamental 25764  Submission by Mr. Jackson        1 authority of the system  of hereditary chiefs.  2 At page 105 and the following pages, and in  3 particular in terms of the evidence of Mr. Neil  4 Sterritt, which is set out at page 108, we say that  5 the Gitksan and Wet'suwet'en hereditary -- the Gitksan  6 and Wet'suwet'en Tribal Council operates as an  7 emanation or an extension of the hereditary chiefs and  8 that in the context of a government bureaucracy and  9 administration, such as the federal government, for  10 example, in terms of negotiating with the provincial  11 government, it has become necessary and useful for the  12 hereditary chiefs, given their number, to have an  13 agency, to have an arm of their jurisdictional system  14 which is able in a speedy and efficacious way to  15 interface and interact with governments which require  16 that kind of interaction.  17 And at page 108, my lord, I've set out the various  18 issues which Mr. Sterritt gave evidence about and how  19 he saw his role not as having a mandate to speak  20 instead of, but as a mandate to speak on behalf of and  21 subject to the direction of the hereditary chiefs.  22 My lord, at page 109 there is a section dealing  23 with the fishing by-laws, and the purpose of this  24 material is not, of course, to demonstrate some  25 preclusive or overriding jurisdiction in the  26 plaintiffs vis-a-vis the federal government.  As your  27 lordship has made very clear, that is not an issue  28 raised on these pleadings and not an issue before your  29 court.  30 The purpose of providing your lordship with a  31 summary of this evidence -- and I should say, my lord,  32 that this evidence is also summarized in a variety of  33 judicial sources.  In the Wale case, that's W-a-l-e,  34 the judgment of Mr. Justice Seaton reviews some of  35 this material.  And Mr. Justice Joyal in a case which  36 is for the moment -- in the Robinson case, my lord,  37 also has reviewed some of the history of these  38 by-laws.  So this material, while it has been spoken  39 to by witnesses, in particular, Mr. Glen Williams, is  40 evidence which your lordship could have regard to  41 outside of the context of this trial.  42 The purpose of this material, my lord, is to show  43 how in the development of a set of by-laws under the  44 Indian Act the Gitksan and Wet'suwet'en system of  45 authority has sought to use the by-laws not simply as  46 a recognition that the bands and the band councillors  47 have the exclusive authority in this area, but rather 25765  Submission by Mr. Jackson        1 how in developing the  by-laws those by-laws were  2 worked on by the band councils in direct consultation  3 with the hereditary chiefs, and how the by-laws were  4 used because they were a recognized source of  5 authority, recognized, that is, by the federal  6 government, recognized by the provincial government by  7 virtue of the federal paramountcy doctrine, Section  8 91(24) of the British North America Act, and how the  9 band councils and the hereditary chiefs sought to use  10 the existing system available to them without  11 resorting to litigation, such as what has happened in  12 this case, and having worked through a set of by-laws  13 using existing mechanisms open to them, using their  14 best efforts, negotiating in good faith, complying in  15 every way with what they understood to be the demands  16 and requirements of other federal agencies.  Having  17 got to that point, their ability to implement those  18 by-laws within the context of the recognized system  19 was, in fact, thwarted by the application of the  20 provincial defendant.  21 MR. GOLDIE:  That was a relator action, my lord.  My friend  22 knows the difference.  23 MR. JACKSON:  Well, my lord —  24 THE COURT:  Are you talking about Wale?  25 MR. JACKSON:  Yes, my lord.  I don't think we have to get into  26 the niceties of whether or not a relator action in  27 lending the imprimatur of the provincial defendant is  28 the act of the provincial defendant or otherwise.  29 That's not the point, my lord.  My principal point is  30 that this was an effort by the plaintiffs to use  31 existing systems of authority, and it failed.  32 THE COURT:  Well, Wale is under appeal to the Supreme Court of  33 Canada, is it not?  It's been argued.  34 MR. JACKSON:  Yes, my lord.  35 MR. GRANT:  No.  36 THE COURT:  Hasn't been argued.  37 MR. GOLDIE:  It hasn't been argued.  Leave was granted long ago,  38 but it hasn't been set down, my lord.  39 THE COURT:  All right.  Thank you.  40 MR. JACKSON:  And, my lord, the materials at page 109 to 116  41 track that history.  42 THE COURT:  I'm sorry, where?  43 MR. JACKSON:  Page — up to 116 from page 112.  4 4 THE COURT:  109 to 116.  4 5 MR. JACKSON:  109 to 116.  4 6 THE COURT:  Thank you.  47 MR. JACKSON:  My lord, the last part of the material which I 25766  Submission by Mr. Jackson        1 would read to your  lordship deals with the  2 relationship of the present action to the plaintiffs'  3 system of authority.  And at page 116 we say we end  4 this section of argument in a sense where we began,  5 with the question of the land and the competing  6 systems of authority pertaining to that land.  It is  7 our submission that the present court action attests  8 to the consistency and vitality of the Gitksan and  9 Wet'suwet'en systems of authority in the face of a  10 governmental system of authority which has very  11 different goals and interests compared to those of the  12 plaintiffs.  13 Throughout the last century the Gitksan and  14 Wet'suwet'en have pursued a policy of asserting their  15 system of authority whenever possible, and  16 accommodating the alien system where necessary.  The  17 present court action of the plaintiffs attests to the  18 will and commitment of the two peoples to stand firmly  19 for their aboriginal rights and duties vis-a-vis one  20 another, vis-a-vis other social groupings in the  21 greater society, and vis-a-vis the land itself.  22 This land title action is itself evidence of the  23 assertion of the hereditary system of authority in  24 face of other competing systems.  And I've recited  25 there, my lord, what the late Ken Muldoe, Delgamuukw,  26 told this court.  27  28 "An aboriginal rights package can be put on the  29 shelf to be forgotten or to be endlessly  30 debated at Constitutional conferences...We are  31 here to discuss territory and authority.  When  32 this case ends and the package has been  33 unwrapped, it will have to be our ownership and  34 our jurisdiction under our law that is on the  35 table."  36  37 Ken Muldoe spoke to the court with the authority  38 of Delgamuukw, House chief of the Lax Se'el Clan of  39 Kispiox.  He spoke with the authority that comes from  40 the accumulated experience of all those who have held  41 the name and the crests of Delgamuukw for generations  42 before him.  The message given to the court by  43 Delgamuukw on behalf of the Gitksan, and Gisdaywa on  44 behalf of the Wet'suwet'en, was clear:  "We are here  45 to discuss territory and authority."  46 It is our submission that throughout the past  47 century the accumulated actions of the House chiefs, 25767  Submission by Mr. Jackson  Submission by Mr. Rush  1 their members, and their various political  2 organizations have both demonstrated the vitality,  3 persistence, and flexibility of the hereditary system  4 of authority and the continuing efforts of the  5 plaintiffs to seek an accommodation with the reality  6 of government refusal either to accommodate or  7 recognize the Gitksan and Wet'suwet'en ownership of  8 land and the full social, legal, political, economic,  9 and spiritual authority that that ownership denotes.  10 My lord, that was the end of this part of the  11 submission.  Mr. Rush is going to deal with the next  12 part of the argument, and I wonder if we could stand  13 down perhaps for just three or four minutes.  14 THE COURT:  Well, I've made appointments to do things at ten  15 o'clock.  16 MR. JACKSON:  Well, my lord —  17 THE COURT:  I really object to sitting late at night and then  18 wasting time during the day.  19 MR. JACKSON:  Mr. Rush is here.  20 THE COURT:  Well, let's get going.  I'd rather not adjourn.  21 MR. JACKSON:  That's fine, my lord.  22 MR. RUSH:  My lord, I'm in a position to proceed now.  2 3 THE COURT:  Thank you.  24 MR. RUSH:  And the next section of the plaintiffs' argument will  25 deal with the colonial period in the Colony of  26 Vancouver Island, of the mainland and the united  27 colonies prior to 1871.  And I will pass up to your  28 lordship now Volume number 7 of the plaintiffs'  29 argument containing the first portion of that  30 argument, and I have an additional copy for the  31 recorder.  32 THE COURT:  Thank you.  I'm not entirely sure what this one is.  33 MR. RUSH:  It's a second copy for the reporter.  34 THE COURT:  Oh, for the reporter.  Are we going to finish this  35 today?  36 MR. RUSH:  I hope to finish this by noon.  37 THE COURT:  Oh.  I better not say a word.  38 MR. RUSH:  My lord, this portion of the argument will review the  39 historical documents and evidence pertaining thereto  40 leading up to the establishment of the Colony of  41 Vancouver's Island through the colonial period and to  42 the point of union in 1871, following which Ms.  43 Mandell will make submissions to you regarding the  44 appropriate tests to be applied when viewing the  45 historical period and the proclamations and ordinances  46 of the historical period as to whether or not they  47 could be considered as affecting any form of 25768  Submission by Mr. Rush        1 extinguishment direct or  implied.  And it is our hope  2 that with the day's end we will have completed the  3 argument in those two parts.  4 Now, beginning, my lord, with the question of the  5 law applicable to aboriginal title in British Columbia  6 and, in particular, to the law applicable as at the  7 eve of the establishment of Vancouver's Island, our  8 submission is that when the British claims to  9 sovereignty over what is now British Columbia were  10 settled by the Treaty of Washington in 1846 the  11 fundamental principles of the common law in respect of  12 aboriginal peoples were the principles affirmed in the  13 Marshall decisions, which have their fullest  14 expression in the case of Worcester v. Georgia, in the  15 Treaty of Waitangi, and in the decision of the New  16 Zealand Supreme Court in R. v. Symonds.  17 Now, in Symonds the New Zealand Supreme Court  18 enunciated the principles of universal application  19 regarding the territorial rights of the Crown and the  20 aboriginal natives and in so doing affirmed the  21 following:  22  23 "Whatever may be the opinion of jurists as to  24 the strength or weakness of Native title,  25 whatever may have been the past vague notions  26 of the Natives of this country, whatever may be  27 their present clearer and still growing  28 conception of their dominion over land, it  29 cannot be too solemnly asserted that it is  30 entitled to be respected, that it cannot be  31 extinguished (at least in times of peace) other  32 wise than by the free consent of the Native  33 occupiers.  But for their protection, and for  34 the sake of humanity the Government is bound to  35 maintain, and the courts to assert, the Queen's  36 exclusive right to extinguish it."  37  38 This case was decided in 1847, two years before  39 the creation of the Colony of Vancouver's Island, by a  40 colonial court applying the common law applicable  41 throughout the British dominions.  I just pause there,  42 my lord, to tell you that we have asserted at greatest  43 length in Mr. Jackson's argument our position  44 regarding the Symonds case, and we've discussed it  45 more fully, and that can be found in Volume 3 at page  46 116, and that's tab 10.  47 Now, my lord, what we say on 2 is that the 25769  Submission by Mr. Rush        1 principles referred to  above recognize the pre-  2 existing rights of aboriginal peoples as to the  3 ownership of their territories and the right to  4 exercise full authority over their territories,  5 limited only by a restriction on alienation of their  6 territories to persons other than to the Crown or  7 persons authorized by the Crown.  These principles  8 also recognize an underlying title in the Crown which  9 was limited by the obligation to acquire such lands as  10 the aboriginal peoples were willing to sell.  Most  11 important, underpinning the legal relationship between  12 aboriginal rights and Crown rights was the principle  13 of aboriginal people's consent and Crown protection.  14 We say these principles were embodied in the  15 common law, and these principles constitute the legal  16 framework which was applicable to the Colony of  17 Vancouver's Island when established in 1849 and the  18 Colony of British Columbia when established in 1858.  19 We say these principles applied to what is now  20 British Columbia, and that it is evident from the  21 confidential memo given to the Foreign Office in March  22 of 1849.  And I'll just deal with this briefly at this  23 juncture.  24  25 "It must however be added that in parting with  26 the land of the island Her Majesty parts only  27 with her own right therein, and that whatever  28 measures she was bound to take in order to  29 extinguish the aboriginal title are equally  30 obligatory on the company."  31  32 Now, my lord, our position is that this is the  33 language of law.  Here the principles guiding the  34 Company were to be in accordance with the common law  35 principles not only to part only with what title it,  36 that is to say the Crown, had by law, but also to  37 recognize the aboriginal title and to extinguish it by  38 whatever measures she was bound to take, and it  39 follows in accordance with the law.  And these are  40 legal obligations consistent with Imperial  41 understanding of the law as it had developed in the  42 jurisprudence and the long history of Crown practice  43 and policy in treating with the Indian peoples of  44 North America.  45 Now, we say, my lord, that the same principles  46 applied to the Crown and to the Indians were confirmed  47 in the Royal Proclamation of 1763.  And I repeat here 25770  Submission by Mr. Rush        1 in the next paragraph an  argument we previously made  2 about the prospective application of Part IV of the  3 proclamation through the jurisdiction acts to the  4 territory which became known as Indian territory and  5 was New Caledonia, the territory of New Caledonia,  6 which eventually became British Columbia and the  7 Colony of British Columbia.  8 Over to 4, my lord.  The Royal Proclamation and  9 the guarantees which it afforded to Indian peoples was  10 not an ordinary statute.  The principles which it  11 affirmed codified fundamental rights for Indians, and  12 these rights were of a higher order than those created  13 by simple enactment and took on a constitutional  14 status.  It was an Imperial law which operated as a  15 restriction on the legislative competence of colonial  16 legislatures.  And colonial enactment which could be  17 read -- excuse me.  Any colonial enactment which could  18 be read as being inconsistent with the Indian land  19 provisions of the proclamation had to be read to avoid  20 repugnancy with the Imperial law.  The Royal  21 Proclamation of 1763 applied in this way to what is  22 known as British Columbia as at the time of the  23 establishment of the colonies of Vancouver's Island  24 and British Columbia.  25 Now, my lord, we make another argument in the  26 further alternative, and that is if the common law and  27 the Royal Proclamation provisions regarding Indian  28 land rights and protection did not apply to and bind  29 the colony insofar as their policy and local laws  30 reflected, then we say there was a constitutional  31 convention operative in the colonies as of 1849 which  32 acted as a guarantee of Indian land rights and as a  33 limitation on the colonial statute-making power.  34 Constitutional convention stems from historical  35 constitutional usage and practice.  And we take  36 support from Lord Denning's decision in R. v.  37 Secretary of State, where he applied the doctrine of  38 constitutional convention to find that according to  39 usage and practice the Crown in Canada became separate  40 and divisible according to the particular territory in  41 which it was sovereign.  We'll submit further to you  42 on that point when Ms. Mandell addresses you.  43 By 1849 we say a constitutional convention in  44 respect to Indian land rights and how they were to be  45 dealt with in the colonies of Britain had developed  46 through long usage and practice, and the history of  47 this has been set out in the part of our argument 25771  Submission by Mr. Rush 1            dealing with the  fundamental principles of aboriginal  2 law.  3 Now, my lord, moving to the next paragraph,  4 whether by the common law, the Royal Proclamation of  5 1763 or constitutional convention, the fundamental  6 principles of aboriginal rights and title applied to  7 the colonies of British Columbia, and whatever the  8 policy that was applied from time to time in the  9 colonies of British Columbia throughout the colonial  10 era, and indeed beyond, it could not be inconsistent  11 with these legal principles.  12 Now, my lord, I want to just pause here to raise  13 with your lordship the argument that is made by the  14 province here.  And we say that their argument on the  15 colonial period commences from a flawed, fundamentally  16 flawed proposition, and we say one that's been  17 rejected by the courts.  And I've set out where in  18 their argument that appears, and I'm just going to  19 cite in part what they say.  At the bottom of 5:  20  21 "It is axiomatic that the source of a right  22 which is enforceable against the Crown must be  23 found in an acknowledgment of the existence of  24 such a right, expressly, or from necessary  25 implication, express acknowledgment may be  26 found in an exercise of the Royal Prerogative  27 or in an Act of Parliament.  Necessary  28 implication may arise from a course of conduct  29 by the Executive on behalf of the Crown."  30  31 Now, we say, my lord, this position was advanced  32 and adopted by the British Columbia Court of Appeal in  33 Calder, and it was rejected in the Supreme Court of  34 Canada by Mr. Justice Hall in Calder.  And what he  35 said is this, after an extensive review of the  36 authorities:  37  38 "The aboriginal Indian title does not depend on  39 Treaty Executive Order or Legislative  4 0 enactment."  41  42 And later, after reviewing Mr. Justice Blackburn in  43 Milirrpum, Mr. Justice Hall concluded:  44  45 "It will be seen that he..."  46  47  THE COURT:  That's Blackburn, is it? 25772  Submission by Mr. Rush 1  MR. RUSH:  Yes.  2 THE COURT:  Yes.  3 MR. RUSH:  4  5 "...fell into the same errors as did Mr. Justice  6 Gould, J, and the Court of Appeal.  The essence  7 of his concurrence with the Court of Appeal  8 judgment lies in his acceptance of the  9 proposition that after conquest or discovery  10 the native peoples have no rights at all except  11 those subsequently granted or recognized by the  12 conqueror or discoverer.  That proposition is  13 wholly wrong as the mass of authorities  14 previously cited, including Johnson v. M'Intosh  15 and Campbell v. Hall, establishes."  16  17 And, my lord, Mr. Jackson exhaustively reviewed  18 the decisions by Chief Justice Marshall in those  19 cases.  20 Now, the United States Supreme Court in Lipan  21 Appache came to the same conclusion as Mr. Justice  22 Hall.  I want to cite briefly from this decision of  23 the United States Supreme Court.  24  25 "The Claims Commission has found, however, that  26 even if the claimants had once possessed  27 aboriginal title to the lands, that right of  28 occupancy was lost after 1836 when Texas became  29 an independent country.  The Commission  30 appeared to believe that the survival of  31 aboriginal title depends upon affirmative  32 recognition by the sovereign and that the  33 Republic 'did not accord the Indian[s] the  34 right of occupancy...'.  35  36 Without such a right to lands in Texas, at the  37 time of annexation, the tribes failed to prove  38 a necessary element of their cause of action  39 and were barred from recovery.  40  41 To the extent that the Commission and the  42 appellee believe that affirmative governmental  43 recognition or approval is a prerequisite to  44 the existence of aboriginal title, we think  45 they err.  Indian title based on aboriginal  46 possession does not depend upon sovereign  47 recognition or affirmative acceptance for its 25773  Submission by Mr. Rush 1                   survival."  2  3 My lord, a similar position was taken by Chief  4 Justice Dickson in Guerin where he made it very clear  5 that Indian title is an independent legal right.  6  7 "Their interest," he said, "in their lands is a  8 pre- existing legal right not created by Royal  9 Proclamation by Section 18(1) of the Indian  10 Act, or by any other Executive Order or  11 Legislative Provision."  12  13 And his lordship continued -- and these are passages,  14 my lord, that Mr. Jackson has referred you to already,  15 but I think they bear repetition.  16  17 "It does not matter, in my opinion, that the  18 present case is concerned with the interest of  19 an Indian Band in reserve rather than with  20 unrecognized aboriginal title in traditional  21 tribal lands.  The Indian interest in the land  22 is the same in both cases."  23  24 And what we say is there he acknowledges the pre-  25 existing character of the aboriginal right in the  26 land.  27 And we say at the top of 8, my lord, that  28 aboriginal title is a pre-existing legal right.  It  29 does not depend on the express or implied  30 acknowledgment by the Crown for its existence.  It  31 does not depend on the exercise of the Royal  32 Prerogative, an act of parliament or a course of  33 conduct.  Once established as a matter of fact, as the  34 plaintiffs have done in this case, it endures until  35 extinguished with the consent, or in the alternative,  36 by clear and express statutory language.  37 THE COURT:  I think we'll take the first adjournment now, Mr.  38 Rush.  39 MR. RUSH:  Thank you, my lord.  40 THE REGISTRAR:  Order in court.  Court stands adjourned for a  41 short recess.  42  43 (PROCEEDINGS ADJOURNED AT 10:00 A.M.)  44  45  46  47 25774  Submi  .ssion  by  Mr.  Rush  ereby certify  the  foregoin  Lg to  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  1  be a true and accurate transcript  of the proceedings transcribed to  the best of my skill and ability.  Leanna Smith  Official Reporter  UNITED REPORTING SERVICE LTD. 25775  Submissions by Mr. Rush 1                (PROCEEDINGS RESUMED  AT 10:20 a.m.)  2 THE COURT:  Mr. Rush.  3 MR. RUSH:  My lord, on page eight I now turn to the history of  4 the colonial period and I ask you first to look to  5 Part I entitled Recognition of Aboriginal Title in  6 British Columbia by Britain and Colonial Governments  7 Prior to 1871.  And we say Great Britain's obligation  8 of recognizing aboriginal title and of purchasing  9 lands from Indians in North America was recognized and  10 affirmed in the Royal Proclamation.  The Proclamation  11 provided that Purchases of lands from Indians were to  12 be made with the consent of the Indian ands were to be  13 made only in the name of the Crown.  The fundamental  14 principles regarding Indian land rights were also  15 recognized and expressed in the common-law.  The  16 Crown's obligations at law were extended to lands  17 which are now in British Columbia.  And there is  18 now -- there is no evidence that the Crown's  19 obligations have been repudiated by the British Crown.  20 Now, I move to the second paragraph, my lord, on  21 nine.  The following are examples on the basis of our  22 position that the law proclaimed in 1763, expressed in  23 the common law and carried out as Imperial policy  24 continued in force through the next century and was  25 directed specifically to Indian lands in what is now  26 British Columbia.  27 And I direct you first, my lord, to the secret  28 instructions to Captain Cook of 6 July 1776, and the  29 first paragraph on page -- or under this heading on  30 page nine gives some of the detail of the Captain  31 Cook's voyage.  But I take you now to ten and the  32 passage of those secret instructions beginning about  33 halfway down, and I draw your lordship's attention to  34 this:  35  36 "And if in your farther progress to the  37 northward, as hereafter directed, you find any  38 subjects of any of European prince or state  39 upon any part of the coast you may think proper  40 to visit, you are not to disturb them or give  41 them any just cause of offence, but on the  42 contrary to treat them with civility and  43 friendship."  44  45 Cook was further directed to take possession in the  46 name of the King, subject to the consent of the  47 natives, of any lands not previously discovered or 25776  Submissions by Mr. Rush        1 visited by any other  European power.  Only if the  2 lands were uninhabited, was Cook directed to take  3 possession in the name of the King.  I direct your  4 attention to the emphasized portion, my lord:  5  6 "You are also with the consent of the natives  7 to take possession in the name of the King of  8 Great Britain of convenient situations in such  9 countries as you may discover, that have not  10 already been discovered or visited by any other  11 European power"  12  13 On his third voyage Cook explored what is now the  14 coast of British Columbia.  And British claims to the  15 land rest in part on Cook's discoveries.  And Cook's  16 instructions were in conformity with the Royal  17 Proclamation.  18 THE COURT:  Were those first instructions with relation to his  19 third voyage as well?  20 MR. RUSH:  They were in respect of all of his voyages, my lord.  21 THE COURT:  All of his voyages?  22 MR. RUSH:  Yes.  23 THE COURT:  My memory has failed me, but did he come to the  24 northwest coast in his first and second voyage?  25 MR. RUSH:  No.  These instructions were issued in 1776 and he --  2 6 THE COURT:  All right.  27 MR. RUSH:  He didn't reach —  2 8 THE COURT:  All right.  29 MR. RUSH:  — the British Columbia coast until '78.  30 THE COURT:  Yes.  All right.  So — all right.  31 MR. RUSH:  Now, my lord, similar instructions were issued to  32 Captain Nathaniel Portlock and George Dixon and in  33 1785 they were sent to set up trading establishments  34 at Nootka Sound on the west coast of Vancouver Island.  35 MR. GOLDIE:  I don't think my friend intends to suggest the  36 instructions were from the same source.  37 MR. RUSH:  I don't suggest that and I don't think it's — it is  38 all suggested in the text before my friend.  What I do  39 say, however, my lord, looking at the second paragraph  40 there:  41  42 "Therefore, wherever it is necessary to  43 establish a factory,"  44  45 And a factory was a trading station,  46  47 "you are to purchase of the natives such tract 25777  Submissions by Mr. Rush        1 of land as you  shall think best suited for the  2 purpose of trading, and for security, paying  3 them in the most friendly and liberal manner  4 for the same."  5  6 Now, my lord, just returning to Captain Cook for a  7 moment.  The evidence is that Captain Cook did in fact  8 carry out the instructions issued to him with respect  9 to paying the natives who made claims in the territory  10 where he touched.  And I give a number of references  11 here to that, and I'll just refer to the one of Mr.  12 King, who accompanied Cook, who reported that the  13 Indians "made the Captain pay for the grass which he  14 cut at the village, although useless to themselves,"  15 according to him.  And I give other examples of where  16 Cook in fact made those purchases in accordance with  17 his instructions.  18 Now, British policy in 1790 to 1846 I will refer  19 to now.  In those years Britain's claims in parts of  20 what is now British Columbia were contested by Russia,  21 Spain, and the U.S.  In the course of those disputes  22 Britain asserted her claims to trade with the Indians  23 and to form establishments subject to the consent of  24 the natives.  The policy of Britain to recognize  25 aboriginal title on the Northwest Coast was reiterated  26 in 1790 and asserted again in 1824.  27 And first, my lord, I direct you to a -- the issue  28 between Britain and Spain which has been called the  29 Nootka Sound controversy in 1790.  And partway down  30 the next paragraph:  On 16 May 1790 the British charge  31 d'affaires at Madrid delivered a memorial and  32 accompanying note to the court of Spain.  And this is  33 what he said, and I just refer you to a few of these  34 passages.  Merry, who was his name, was:  35  36 "to represent in the strongest manner to the  37 Court of Spain that His Majesty has every  38 reason to expect from the justice and wisdom of  39 His Catholic Majesty"  40  41 And then I refer you down to the bottom of the page,  42 my lord, third line from the bottom:  43  44 "where the subjects of His Majesty have an  45 unquestionable right to a free and undisturbed  46 enjoyment of the benefits of commerce,  47 navigation and fishery, and also to the 25778  Submissions by Mr. Rush 1                   possession of such  establishments as they may  2 form, with the consent of the natives, in  3 places unoccupied by other European nations."  4  5 Now, the matter was eventually resolved by the Nootka  6 Conventions of 1793 and '94 whereby Britain and Spain  7 recognized mutual rights to trade with the natives and  8 to form establishments, neither European power  9 claiming the right to exclude the other.  The  10 Conventions of 1793 and '94 did not purport to  11 extinguish aboriginal title.  Both Spain and Britain  12 recognized native rights in the land.  13 Now, the competing claims of Britain and the U.S.  14 on the Northwest Coast were the subject of diplomatic  15 negotiations which extended over several decades  16 resulting in the Conventions of 1818, 1827 and 1846.  17 And I have set out the Convention of 1818 providing  18 for "joint occupation" and I make reference at the top  19 of page 15 to the Treaty of the 22nd of February in  20 1819, where the United States acquired Spanish claims  21 in the region.  And the fact that this led to the  22 Convention first of 1818 and then of 1827.  23 But in 1824, during the course of discussions  24 between the United States and Britain over the joint  25 occupation of the area which was the Northwest Coast,  26 today Oregon, Washington and the lower end of  27 Vancouver Island, the British diplomats argued that  28 Britain's claims were superior to those formerly  29 asserted by Spain and now claimed by the United  30 States.  The British Plenipotentiaries referred to the  31 16 May 1790 documents noted above to show what Britain  32 asserted and to show that this was long-established  33 British policy.  Richard Rush was the American  34 diplomat who assisted in negotiations, and he wrote an  35 account of them that was published, and what he said  36 appears at the top of 16, my lord:  37  38 "They referred to the note of the British  39 Minister to the Court of Spain, of May 16,  40 1790, in which Britain had not only asserted a  41 full right to an uninterrupted commerce and  42 navigation in the Pacific, but also that of  43 forming, with the consent of the natives,  44 whatever establishments she thought proper on  45 the North-west coast, in parts not already  46 occupied by other nations."  47 25779  passage I  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submissions by Mr. Rush        1 And then the critical  ask you to note:  "This had always been the doctrine of Great  Britain, - from it nothing that was due, in her  estimation, to other Powers, now called upon  her in any degree to depart."  The doctrine described by the British  Plenipotentiaries in 1824 as having "always been the  doctrine of Great Britain" stipulated that native  consent is necessary before British establishments can  be formed on the Northwest Coast.  And this is a clear  statement, we say, that native rights in land were  recognized and that it was well settled in the law of  Britain not to disturb the natives in the possession  of their lands without consent.  Now, my lord, Britain regarded native consent as  an important part of its doctrine and continued to  maintain that part of the doctrine.  The importance of  native consent was asserted in a British analysis of  the claims to the Oregon Territory which was published  in 1844.  The author was a Mr. Thorn, who was called to  the Bar of Lower Canada and was the first Recorder of  Rupert's Land, and he was defending British claims  here, and he reviewed the historical basis for the  competing claims of Spain, Britain, and the United  States.  And I direct you to the passage that I bolded  there, my lord, and he says:  "But there is a convention more decisive in its  character than any treaty between foreign  competitors, the consent of the aborigines  themselves.  Moreover, the consent of the natives ought to  have the greater weight"  And he's referring here to the natives of the  Northwest Coast.  Now, my lord, I am take you to 18 and what I note  here is that we are not concerned here with whether  Thorn's assessment of Spanish and American relations  with Indians was correct, whether his assessment of  natives east and west of the Rockies was valid, or  with the rectitude of his legal analysis.  We rely on  the material quoted above as a statement of British  doctrine which is consistent with that of the British 25780  Submissions by Mr. Rush        1 Plenipotentiaries given  twenty years earlier.  2 Now, I move down to the bottom of the page, my  3 lord, continuing the historical pattern.  The "joint  4 occupancy" of the disputed territory on the Pacific  5 was finally ended by the Treaty of Washington in 15  6 June 1846 which fixed the boundary between British  7 territory and the United States at the forty-ninth  8 parallel.  Neither the Conventions of 1818, 1827, nor  9 the Treaty of 1846 purported to extinguish aboriginal  10 title.  11 When sovereignty was settled in the disputed  12 territory north of the 49th parallel, British  13 sovereignty to what is now British Columbia was fixed.  14 The date of June 15, 1846 is the date of the assertion  15 of British sovereignty and the time at which we say  16 the Crown was obliged as a matter of law to acquire  17 aboriginal title from the Indian peoples of British  18 Columbia if they wished to deal with aboriginal lands.  19 The assertion of sovereignty was the principle  20 conquering European nations agreed upon among  21 themselves as a means of determining their own  22 potential competing interests to the lands of North  23 America.  And I refer, my lord, here to Calder and  24 Guerin, both decisions adopted approved the language  25 of Marshall in Johnson and Mcintosh.  And my lord, I  26 draw your attention to this passage of Johnson and  27 Mcintosh:  28  29 "The exclusion of all other Europeans  30 necessarily gave to the Nation making the  31 discovery the sole right of acquiring the soil  32 from the natives, and establishing settlements  33 upon it.  It was a right with which no European  34 could interfere.  It was a right which all  35 asserted for themselves, and to the assertion  36 of which, by others, all assented."  37  38 And the principle which required the exclusion of all  39 competing European powers before the ability to assert  40 a lawful claim with attendant legal obligations was  41 discussed at length in Worcester and Georgia.  And my  42 lord, I again set out the passage from Worcester and  43 Georgia which we have referred you to earlier.  44 Now, with the resolution of the southern boundary  45 of present-day British Columbia by the 1846 Treaty,  46 the United States ceded their claims in the area to  47 Great Britain and Great Britain's claim to sovereignty 25781  Submissions by Mr. Rush        1 was determined.  From  then on Britain was obligated  2 under law to deal with the Indians of British Columbia  3 as organized peoples in respect of their aboriginal  4 title  5 Now, my lord, I then refer you to a book published  6 by a Travis Twiss in 1846, and Mr. Twiss talked about  7 the importance of settlement as being a necessary  8 aspect, because the Spanish Crown had claimed the  9 entire Pacific Coast of North and South America but  10 had not formed any settlements.  And what he said  11 was -- and he's commenting here as a political  12 scientist, but nevertheless I think it's significant:  13  14 "A further accessorial right of settlement has,  15 in modern times, been recognized by the  16 practice of civilized nations in both  17 hemispheres, namely, a right of pre-emption  18 from the aboriginal inhabitants in favour of  19 the nation which is actually settled in the  2 0 country."  21  22 And then to the bottom of this, and he's writing in a  23 tract called The Oregon Question.  He said:  24  25 "The practice of European nations has certainly  26 recognized in the nation which has first  27 occupied the territory of savage tribes, that  28 live by hunting, fishing, and roaming habits,  29 the sole right of acquiring the soil from the  30 natives by purchase, or cession or conquest,  31 for purpose of establishing settlements.  The  32 more humane spirit of the modern code of  33 nations seems disposed to reduce this right to  34 a right of pre-emption as against other  35 European nations."  36  37 Twiss was speaking after Johnson and Mcintosh and  38 after the Select Committee of the House of Commons had  39 tendered its report on New Zealand on July 29.  40 Now, I will just draw to your attention, my lord,  41 that that report, the New Zealand sub-committee  42 report, as well as its discussions, drafts and  43 evidence it considered made references to the concept  44 of accepting of native title as a concept so commonly  45 understood as to be a "political axion."  And I will  46 be referring to that in just a moment.  47 Now, my lord, I then set out that in the United 25782  Submissions by Mr. Rush        1 States, at this time,  congressional enactments  2 recognized aboriginal title to land and the need for  3 congressional consent for alienation of such title.  4 And the Congressional Proclamation of 1783 expressed  5 the principles of the Royal Proclamation.  I referred  6 this to your lordship before and I just draw your  7 attention to the underlined passages.  8 I then on page 23 refer your lordship to the Trade  9 and Intercourse Act and the Act to establish the  10 territorial government of Oregon, in 1848, and the  11 passages relating to aboriginal title there.  And, my  12 lord, at the bottom of 23 I draw your attention that  13 in the United States at the same time a committee had  14 considered claims in the old Oregon territory as late  15 as 1852, and in the course of their deliberations they  16 noted, at the bottom of page 23:  17  18 "The right to extinguish the possessory title  19 of the natives does not rest in the individual  20 discoverer, but in his government"  21  22 And I draw your lordship's attention to the policy  23 that was applied with regard to the old territory of  24 Oregon as a result.  25 And I now ask you to move to the next paragraph  26 and point out to your lordship that after 1846 there  27 was considerable debate as to how settlement should be  28 effected on Vancouver Island.  Britain was concerned  29 since they had no settlements north of the 49th  30 parallel and only a few Hudson's Bay trading posts.  31 Now, in a letter of June 9 of 1847 a Mr. Fitzgerald  32 who worked at the British Museum in London set out his  33 proposal for a settlement of Vancouver Island to Mr.  34 Hawes who was then the Under Secretary of State and no  35 doubt Mr. Fitzgerald's proposal was a competing one to  36 that of the Hudson's Bay Company.  But it's worthwhile  37 to note as I do, my lord, at the top of 25 the  38 underlined passage that part of Fitzgerald's proposal  39 was "the treatment with the natives for the  40 possession of their soil."  And so he felt that it was  41 important to include a recommendation for dealing with  42 the Indians regarding their possession of the soil.  43 Now, following the Treaty of Washington, Britain  44 out of concern for the fact that British settlement --  45 that the failure to establish British settlements  46 might result in American emigrants crossing the 49th  47 parallel and laying claim to the territory north of 25783  Submissions by Mr. Rush        1 the boundary established  by the Treaty.  Britain had  2 long held that that title could only be maintained  3 when there was an occupation of the country.  The  4 Hudson's Bay Company asked for and finally in 1849  5 received a grant of Vancouver Island on condition that  6 the Company establish colonists there within a set  7 period.  8 And I move to 26, my lord, and note that the grant  9 to Hudson's Bay Company was made on January 13, 1849.  10 And they were given a revocable grant to the land of  11 Vancouver Island.  The major condition of this grant  12 was declared to be the colonization of the Island.  If  13 a Company failed to meet the conditions of the grant  14 the grant could be revoked.  When the company's  15 license to trade terminated in 1859, the Government  16 could repurchase the land on reimbursing the Company  17 for its expenditures.  18 Now, my lord, the grant contains no mention of  19 Indians or aboriginal title to the land of Vancouver  20 Island.  The absence of reference to the Indians is  21 explained in a Confidential memo about Vancouver  22 Island printed at the Foreign Office for perusal by  23 Cabinet in March 1849.  The memo is explicit that the  24 land grant to the Company carried with it the same  25 burden of extinguishing that of aboriginal title as  2 6 that which rested on the Crown.  And I draw your  27 attention to the following passage:  28  29 "With regard to the Indians it has been  30 thought on the whole the better course to make  31 no stipulations respecting them in the grant.  32 Little is in fact known of the natives of this  33 island, by the Company or by any one else.  34 Whether they are numerous or few, strong or  35 week; whether or not they use the land for such  36 purposes as would render the reservation of a  37 large portion of it for their use important or  38 not, are questions which we have not the full  39 materials to answer."  40  41 And then over to 27, my lord:  42  43 "It must however be added that in parting with  44 the land of the island Her Majesty parts only  45 with her own right therein, and that whatever  46 measures she was bound to take in order to  47 extinguish the aboriginal title are equally 25784  Submissions by Mr. Rush        1 obligatory on the  Company."  2  3 Now, my lord, the final sentence of this passage  4 documents the Crown obligation to recognize and  5 extinguish aboriginal title to land in accordance with  6 the principles of the Royal Proclamation and the  7 common law.  The Confidential Memorandum contains an  8 explicit reminder that the Queen can only give what  9 she has.  The transfer of Vancouver Island to the  10 Hudson's Bay Company was held to carry with it the  11 unextinguished aboriginal title as a burden or legal  12 interest on the title asserted by the Crown.  In  13 accepting the land of Vancouver Island from the Crown,  14 the Crown obligation to extinguish the aboriginal  15 title was to be assumed by the Company.  16 Now, my lord, the author of the Confidential memo  17 uses language like "... she was bound to take in order  18 to extinguish... " and in so doing we say indicates  19 the Crown's obligation was one arising in law.  And  20 that law applied to Vancouver's Island and the  21 Company's dealings with native people there.  Issue is  22 taken with this Confidential memo in the Province's  23 argument, my lord, and what I set out here is an  24 interpretation, if you will, of passages of the memo  25 which I say unequivocally demonstrates that it's an  26 internal briefing document to cabinet and from the  27 senior responsible Minister or his Administrative  28 Under Secretary.  We say that as a hypothesized, if  29 this were a Parliamentary debate, there would be no  30 need to allude to the necessity of involving  31 Parliament in the establishment of the legal framework  32 for the Colony.  Here, Cabinet, my lord, was being  33 advised what it could do as a matter of advice to the  34 King on its own and what it had to go to Parliament  35 for.  And I set out the relevant passages there.  36 My lord, the language of the memo taken as a whole  37 shows nothing inconsistent with aboriginal title and  38 the Crown title living together.  And I think this is  39 an important point.  The memo acknowledges  40 pre-existing aboriginal title in the native people of  41 the Island and requires the Company to extinguish it,  42 as agent for the Crown, according to law.  At the same  43 time the government endorses the colonizing plans of  44 the Company in so far as grants to settlers are made  45 of lands, the title to which the Crown is empowered to  46 give, that is to say, lands which have been ceded to  47 the Crown by the Indian people.  The memo, and we say, 25785  Submissions by Mr. Rush 1            the decision-makers in  Britain, saw the two titles as  2 compatible, and governed by the principles of the  3 common law and the Proclamation touching the Colony at  4 the time.  5 My lord, five months later a memo from the Hudson  6 Bay House, from Mr. Pelly to Mr. Douglas, states the  7 Hudson Bay's status as agent for the Crown in the  8 Colony, and I there set this out and I draw your  9 lordship's attention to the particular passages.  10 Now I take you to page 30, Recognition of  11 Aboriginal Title by the Hudson's Bay Company.  In  12 September of 1849 Douglas advised his superiors at  13 Hudson's Bay House of the need to effect land  14 purchases from the natives.  And, my lord, this I  15 think is an important despatch.  In it Douglas says to  16 Barclay:  17  18 "Some arrangement should be made as soon as  19 possible with the native Tribes for the  20 purchase of their lands and I would recommend  21 payment being made in the Shape of an annual  22 allowance instead of the whole sum being given  23 at one time; they will thus derive a permanent  24 benefit from the sale of their lands and the  25 Colony will have a degree of security from  26 their future good behavior.  I would also  27 strongly recommend, equally as a measure of  28 justice, and from a regard to the future peace  29 of the colony, that the Indians Fisheries,  30 Village Sitis and Fields, should be reserved  31 for their benefit and fully secured to them by  32 law."  33  34 Now, my lord, why this is important is because you  35 will hear in argument from the Province that the  36 reserve-making policy only appeared upon the creation  37 of the Mainland of British Columbia, the Colony of the  38 Mainland of British Columbia somehow as though it was  39 a thought that emerged with Governor Douglas as at the  40 time of the creation of that Colony and that is simply  41 not so in the historical record.  42 This letter shows, as I indicate at the bottom of  43 page 30, that Douglas envisaged two key features to  44 the extinguishment of the Indian interest in land.  45  46  47 "1.    The lands of the native tribes were 25786  Submissions by Mr. Rush        1 to be  purchased by some  2 'arrangement'".  3  4 I say treaty.  And:  5  6 "2.    That lands and fisheries would be  7 reserved for the benefit of the  8 native tribes and protected under  9 law."  10  11 And these were to remain, we say, as the two  12 intertwined features of Indian land policy throughout  13 the whole of the Colonial period.  14 In December Barclay, Secretary of the Hudson's Bay  15 Company, sent Douglas instructions regarding Company  16 policies with respect to colonization and sale of  17 land.  Douglas was advised that the natives were to be  18 confirmed in the possession of certain of their lands  19 and he was directed to treat with the Indians for  20 extinguishment of their title to lands needed for  21 settlement.  Now, I refer your lordship to this for  22 what Mr. Barclay says in the underscored portions and  23 I refer you specifically to the first paragraph:  24  25 "With respect to the rights of the natives you  26 will have to confer with the Chiefs of the  27 tribes on that subject, and in your  28 negotiations with them you are to consider the  29 natives as the rightful possessors of such  30 lands only as they occupied by cultivation, or  31 had houses built on, at the time when the  32 Island came under the undivided sovereignty of  33 Great Britain in 1846."  34  35 He then goes on in the next paragraph to refer to  36 payment of the interest on signing the Treaty and then  37 in the next he refers to the House of Commons Select  38 Committee Report and the passage that I refer there,  39 refer your lordship to in the third line:  40  41 "that 'the uncivilized inhabitants of any  42 country have but a qualified dominion over it,  43 or a right of occupancy only,"  44  45 And so on.  And then the next page, my lord, I direct  46 your attention to the underscored portion:  47 25787  Submissions by Mr. Rush 1                   "The natives will  be confirmed in the  2 possession of their lands as long as they  3 occupy and cultivate them themselves, but will  4 not be allowed to sell or dispose of them to  5 any private person, the right to the entire  6 soil having been granted to the Company of the  7 Crown."  8  9  THE COURT:  "By the Crown."  10 MR. RUSH:  "By the Crown," thank you.  Now, my lord, what we say  11 this document demonstrates as of December of 1849 is  12 the following.  Barclay was right in -- in this  13 respect.  The natives were the rightful possessors,  14 and in our argument that means owners of the land;  15 and, as such, necessarily had a proprietary interest.  16 He called it a "qualified dominion" and that's  17 language that he takes out of the Select Committee.  18 Secondly, the land of the Indians had to be purchased  19 with fair compensation.  Thirdly, the means of  20 treating with the Indians was Treaty.  And fourthly,  21 the Indians could only sell their proprietary title to  22 the Company, as agent for the Crown.  23 What we say Barclay was wrong about was the extent  24 of the lands "possessed" by the Indians, and he  25 restricted those lands to, quote, those "occupied by  26 cultivation .... or had houses built on...."  And we  27 say, my lord, aboriginal lands were never so confined  28 by the law or by any Imperial statute.  29 Now, my lord, we have previously made the point in  30 our argument that Barclay's implication that the  31 rights of the natives were limited to only such lands  32 as they occupied by cultivation was not consistent  33 with the principles of the common law.  And we have  34 shown how such a qualification when it appeared in  35 Massachussets law was specifically disapproved of, and  36 I give there where we make the argument and the cite,  37 my lord.  38 But furthermore, in Mitchell and U.S., in 1935,  39 the Supreme Court of the United States applied the  40 principles of the common law and unequivocally affirm  41 that:  42  43 "Indian possession or occupation was considered  44 with reference to their habits and modes of  45 life; their hunting grounds were as much in  46 their actual possession as they clear fields of  47 the whites." 25788  Submissions by Mr. Rush        1  2 So we say that to this extent Barclay's letter did not  3 properly describe the extent of the Crown's legal  4 obligation to negotiate for the acquisition of the  5 Indian rights.  6 Now, my lord, Professor Hamar Foster considered  7 this letter in a recent article and the source of  8 Barclay's limited and mistaken view of aboriginal  9 rights, and he tracks it down to Barclay's  10 interpretation of the Select Committee, parliamentary  11 Select Committee on New Zealand.  And in that report,  12 and I refer you to the fourth line of Mr. Foster's  13 article:  14  15 "The problem was that the drafters of the  16 Treaty of Waitangi had guaranteed the Maori  17 'full, exclusive, and indisturbed possession of  18 their lands and  ... fisheries  ... so as long  19 as it is their wish and desire to retain the  20 same in their possession.'  But the drafters  21 had not really understood that there was no  22 part of New Zealand, however remote, that was  23 that was not claimed by some tribe.  The  24 missionaries and some elements of the Colonial  25 Office stood by the Maori interpretation, but  26 the New Zealand Company, a colonizing  27 enterprise whose Governor described the treaty  28 as 'a praiseworthy device for amusing and  29 pacifying savages for the moment' disagreed.  30 The Company's view was that the treaty should  31 be read as meaning that only land actually  32 occupied or cultivated by the Maori was subject  33 to aboriginal title, and that the remainder was  34 'waste', available to immediate colonization."  35  36 Now, I just pause there --  37 MR. GOLDIE:  I think my friend should read the next sentence  38 because it is not Barclay's misinterpretation.  39 MR. RUSH:  Excuse me.  I —  4 0 THE COURT:  I have read it anyway.  41 MR. RUSH:  Well, surely I am permitted the luxury, if I may, to  42 make my argument and make my pauses where I please and  43 not subject to my friend's comments.  44 MR. GOLDIE:  Oh, please continue.  45 MR. RUSH:  Well, thank you.  46 MR. GOLDIE:  I will.  47 MR. RUSH:  How generous of you. 25789  Submissions by Mr. Rush        1  MR. GOLDIE:  I will continue to be  generous.  2 MR. RUSH:  That would be —  3 THE COURT:  All right.  Time, gentlemen.  4 MR. RUSH:  My lord, my point here is that what we're dealing  5 with in this -- in the committee report is a dispute  6 between the New Zealand company and the colonial  7 administration which the Select Committee itself was  8 intended to review and did review and that was what  9 they were charged with in the course of their work  10 with the -- in the course of their work reviewing the  11 Treaty of Waitangi.  12  13 "In 1844 the Select Committee adopted this  14 'settler' view of the treaty.  And it is  15 therefore hardly surprising that Barclay, as  16 secretary of a firm (the Hudson's Bay Company)  17 about to embark upon a similar course of  18 action, would pass it on to Douglas."  19  20 Now, my lord, regarding the report of 1844 Mr.  21 Barclay, or rather Professor Foster continues in this  22 vein:  23  24 "What is surprising, however, is that no one  25 seems to have noted that the Colonial Office  26 did not act upon the Select Committee's  27 recommendation."  28  29 THE COURT:  Is he talking there about New Zealand?  3 0 MR. RUSH:  Yes.  31 MR. GOLDIE:  He.  32 THE COURT:  Yes.  33 MR. RUSH:  34  35 "Not only was the Committee itself far from  36 unanimous, three out of five witnesses who  37 testified before it had confirmed that the  38 Maori claimed all of New Zealand."  39  40  41 And then he goes on with regard to the military  42 capabilities of the native owners.  But at the bottom  43 he says, my lord:  44  45 "Hence the incompatibility of the wording of  46 the conveyancing form developed in New Zealand  47 (and adopted later in Vancouver Island) with 25790  Submissions by Mr. Rush        1 the narrow  approach of the 1844 Select  2 Committee that so recommended itself to  3 Barclay."  4  5 Now, I point out here, my lord, at the bottom of 35  6 that the Select Committee was appointed "to inquire  7 into the state of the Colony of New Zealand and into  8 the proceedings of the New Zealand Company and of  9 reporting their opinion thereupon to The House."  The  10 Minutes and Resolutions of the Select Committee are  11 appended.  And it appears at Exhibit 1184.  Now,  12 following the tabling of the Report, my lord, there  13 was considerable Parliamentary debate in The House of  14 Commons.  And there was a wide range of views  15 expressed about the nature and extent of the Indian  16 title to the soil of New Zealand.  And the debates are  17 set out in Exhibit 1256-11, tabs 25 to 29.  In the  18 attempt to limit the parameters with regard to Maori  19 title, comparisons and contrasts were made between  20 Maori and Canadian natives which argue for a wider  21 view of native title in Canada.  Even with regard to  22 Maori, the discussions of how far the language of the  23 Waitangi Treaty is to be read contain arguments  24 against the narrow reading of native title in B.C. to  25 be restricted to actual village sites and gardens.  26 The point, however, is, my lord, that after all of  27 that debate and the various views expressed by the  28 Parliamentarians there, the Colonial Office did not  29 act on the recommendations of the Select Committee.  30 Now, we say that Barclay's purported limitation is  31 a misconception of the obligations of the Crown with  32 respect to dealing with native title.  Such a  33 purported limitation of Indian right to "cultivated  34 lands" was contrary to the principles of the common  35 law.  36 THE COURT:  Well, what are you saying there, Mr. Rush, that in  37 practice in New Zealand they didn't limit their  38 acquisitions to village sites?  39 MR. RUSH:  Correct.  But the company argued they should have.  4 0 THE COURT:  Yes.  41 MR. RUSH:  And what I say, my lord, that —  42 THE COURT:  Well, I am sorry, the company did not limit their  43 acquisitions?  44 MR. RUSH:  The company argued that they should — that the  45 Treaty of Waitangi should not be interpreted in such a  46 broad way as to apply -- as to be applied to all the  47 lands claimed by the various Maori peoples and that it 25791  Submissions by Mr.  and  Rush  1  should be limited to  their  village  sites  2  3  4  5  6  7  THE  COURT  8  9  10  11  12  13  14  15  16  17  MR.  RUSH:  18  19  20  21  THE  COURT  22  MR.  RUSH:  23  THE  COURT  24  25  26  MR.  RUSH:  27  28  29  30  31  32  33  THE  COURT  34  35  MR.  RUSH:  36  THE  COURT  37  MR.  RUSH:  38  THE  COURT  39  MR.  RUSH:  40  41  42  43  44  45  46  47  cultivated fields.  They were trying to narrow the  soil to which they say the Maori people had their  aboriginal title and that is an interpretation which  many, including many of the Parliamentarians, took  issue.  And that was the point I've  :  I am not sure -- you will have to forgive my  unfamiliarity with actual practice in New Zealand in  the 1840s.  I am not sure still what you mean when you  say the Colonial Office did not act on the  recommendation.  As I understood it the company had  this charter that allowed them to go out and acquire  land for settlements, I gather.  And are you saying  that the company did not operate in accordance with  that narrow interpretation when you say the Colonial  Office told them that they must or --  No.  What I am saying is that the Colonial Office  despite what the Select Committee said in its report  to Parliament did not act on those recommendations in  respect of Vancouver Island.  :  All right.  Thank you.  And I say --  :  So your passage there at the end of that top  paragraph on page 34 does not refer to the Colonial  Office's actions in New Zealand at all?  Well, my lord, I think it -- there has been decades  of controversy over the reach of the Treaty of  Waitangi, and it may well be that the Colonial Office  did not act in respect of those recommendations as  well, but the proposition I am advancing here is that  so as far as Vancouver Island went, they did not act  on them.  :  Well, I get the meaning from your sentence by adding  the words qua B.C. at the end of that sentence.  Yes.  :  And that's what you intend to do.  Yes.  That's correct.  :  Thank you.  Now, my lord, the Douglas treaties provide further  support, in my submission, for the point that I have  just emphasized with your lordship about the state  of -- the state of the way the Crown dealt with Indian  lands in Vancouver's island.  The fourteen Douglas treaties made by James  Douglas with Indians for cession of certain lands were  initiated because the Indians had distinct notions of  property rights and Douglas recognized the need to 25792  Submissions by Mr. Rush        1 make formal arrangements  with the natives and  2 compensate them for the use of their land.  3 Now, I want to pause here, my lord, because he  4 made arrangements to deal with the whole of their  5 land, not with the village sites and cultivated  6 fields.  His recommendations were in conformity with  7 the fundamental principles of the Crown to recognize  8 aboriginal title and to extinguish such title through  9 treaties of land cession and payment for land.  As  10 noted in the Confidential Memo on Vancouver Island  11 quoted above, the Hudson's Bay Company assumed the  12 obligation for extinguishing aboriginal title along  13 with its acceptance of the grant of Vancouver Island.  14 Each of the treaties negotiated by Douglas contained  15 similar language.  And my lord, I have set out the  16 treaty of one of them dealing with the Swengwhung  17 Tribe in the Victoria Peninsula, and I just take you  18 to 38.  Now, my lord, a map was prepared by Wilson  19 Duff and published in a treatise entitled the "Fort  20 Victoria Treatise."  And that's exhibited at 1039-23  21 and it shows schematically the territories which were  22 ceded under the first nine treaties made by Douglas at  23 Fort Victoria.  The map outlines what was described as  24 the boundaries in each of the nine treaties, and they  25 are depicted as being contiguous, though perhaps not  26 complete, and encompassing the whole area claimed by  27 the Indian nation.  The map shows what the treaty  28 describes namely that what was ceded was not just  29 their village sites or cultivated places but their  30 entire territories.  And that's confirmed by Duff's  31 article, which I have exhibited as well.  And, my  32 lord, this interpret -- this view of the treaties was  33 confirmed in Bartleman.  34 Douglas reported on the making of these treaties  35 to Mr. Archibald Barclay on May 16, 1850, and I take  36 you to the top of page 39, my lord.  And the third  37 line down Douglas says:  38  39 "After considerable discussion, it was  40 arranged, that the whole of the their lands,  41 forming as before stated the District of  42 Victoria, should be sold to the company, with  43 the exception of Village sites, and enclosed  44 fields, for a certain remuneration to be paid  45 at once to each member of the tribe."  46  47 The point here is that the whole of the territory, my 25793  Submissions by Mr. Rush        1 lord, and I add this to  the argument, that the whole  2 of the territory of the natives was sold and not just  3 the village sites and enclosed fields.  And that was  4 clearly understood in Douglas' treaty made with the  5 people around Arro Strait to Point Albert on the  6 Strait of De Fuca.  7 Now, the Hudson's Bay Company responded to Mr.  8 Douglas on August 16, 1850 and said this:  9  10 "The Governor and Committee very much approve  11 of the measures you have taken in respect of  12 the lands claimed by the natives - you will  13 receive herewith the form of contract or deed  14 of conveyance to be used on future occasions  15 when lands are to be surrendered to the company  16 by the native tribes."  17  18 Now, I take you over to page 40, my lord.  On March  19 18, 1852, Douglas advised Barclay of the following:  20  21 "... I thought it advisable to purchase the  22 whole of the Sanitch country, as a measure that  23 would save much future trouble and expense.  I  24 succeeded in effecting that purchase in a  25 general convention of the tribe; who  26 individually subscribed the deed of sale,"  27  28 And so on.  Now, on the next paragraph, my lord, later  29 on December 6, 1852, Douglas expresses to Barclay that  30 he is "glad to learn that the purchase of the Sanitch  31 country, has met with the approval of the governor and  32 committee."  And we say this is clear approval by the  33 company for Douglas' treaty-making on Vancouver  34 Island.  Now, I pause here, my lord, to add that  35 Douglas knew full value -- fully well the full value  36 of the lands which he was purchasing and that's  37 evident by the reports that he made concerning the  38 area around Fort Victoria, and I have set them out  39 here, my lord.  And what follows is the observations  40 he made about the cultivation of clover and of Kamass  41 and the growth of clover and camas, he reports that  42 potatoes thrive.  Douglas is there speaking about the  43 area which is now the City of Victoria.  Much later in  44 December 3, 1888 Joseph McKay, who was a witness to  45 those early Douglas treaties, said:  46  47 "You will remember that the districts for which 25794  Submissions by Mr. Rush        1 the Indians  received payments in blankets were  2 the main producers of the Kamass root for the  3 whole surrounding country."  4  5 And I point out at the bottom of page 41 that camas  6 bulbs were a staple diet for many Indian groups and  7 that's noted by Professor Turner.  She documents the  8 importance of aboriginal harvesting of camas.  Mr.  9 Wayne Suttles -- Dr. Wayne Suttles indicates that  10 camas was viewed as a special property of the Saanich  11 people and traded with the Katzie in the lower Fraser  12 Valley.  13 Now, my lord, it's evidence that camas was  14 considered a valuable commodity and there is no  15 question that Douglas' payments were made as  16 consideration for the relinquishment of the interest  17 which the peoples in the southern portion of Vancouver  18 Island had in their land.  When he negotiated the  19 treaties he purchased the territory and as well gave  20 valuable consideration.  The information -- that  21 information was available to the Colonial Office in  22 Britain.  The information as well about the nature of  23 the country in the southern point of Vancouver's  24 Island was made available to the Colonial Office as  25 well, and that's evident in a document entitled  26 "Documents Relative to Warre and Vavasour's Military  27 Reconnaissance" and I set out there their reporting to  28 the Colonial Office.  29 Now, I take you to page 44, my lord.  Subsequent  30 correspondence relating to the Douglas treaties shows  31 that Douglas, his superiors at the Hudson's Bay  32 Company in England, the first governor of Vancouver  33 Island, Richard Blanshard, and the third Earl Grey of  34 the Colonial Office all understood these treaties to  35 be in conformity with the Crown's obligations of  36 recognizing aboriginal title and of extinguishing such  37 title with the consent of the Indians, by payment for  38 the land.  And I set out a series of correspondence  39 that demonstrates that.  And I draw your attention to  40 Blanshard's letter of February 18, 1851.  He refers to  41 the figures in dollars for goods paid to the Indians  42 to extinguish their title to the land about Victoria  43 and the manner of accounting for the value of those  44 goods.  45 Hawes, at the Colonial Office, on behalf of Earl  46 Grey, wrote to Pelly at Hudson's Bay House in London  47 on June 26, 1851, and said this: 25795  Submissions by Mr. Rush 1  2 "I am directed by Lord Grey to acknowledge your  3 letter of the 12th of this month, acknowledging  4 mine of the 4th transmitting extracts of a  5 Despatch from Governor Blanshard on the subject  6 of the goods paid to the Indians to extinguish  7 their Titles to land in Vancouver's Island."  8  9 The letter shows that it was read by Merivale,  10 Hawes and Grey of Colonial Office.  The Colonial  11 Office was fully aware of the Douglas treaties and  12 approved of them.  13 Now, my lord, in part because of the expense  14 involved in making surveys and in paying for the land,  15 it was decided to treat with the Indians for the  16 conveyance of aboriginal title only in those  17 localities where settlement was imminent or where  18 resources or development plans made in expedient to  19 buy Indian rights.  20 Douglas considered that if the Indians were paid  21 in advance, and settlement did not occur for several  22 years, the payments might be forgotten and new demands  23 might be made at the time settlement began.  For this  24 reason Douglas declined to treat with the Cowichan and  25 other Indians for their lands, and that's set out in  26 Douglas' letter to Barclay of May 16, 1850.  27 Now, from the outset, my lord, Douglas anticipated  28 that purchase of Indian rights to land would be made  29 on the mainland as well as on Vancouver Island.  And  30 that's evident by Douglas' letter to Yale at the  31 Hudson's Bay Company post at Fort Langley.  And he  32 refers in part, he says:  33  34 "In consequence of orders to that effect from  35 England, I have been lately engaged in buying  36 out the Indian rights to the lands."  37  38 And then farther down he says:  39  40 "I mention this circumstance as your Indians  41 will no doubt be claiming for payment for their  42 lands also but; that can be settled by and by."  43  44 THE COURT:  He's talking about Vancouver Island still, though,  45 is he?  46 MR. RUSH:  He's talking about the mainland.  47 THE COURT:  Think so? 25796  Submissions by Mr. Rush        1  MR. RUSH:  Yes.  Because Yale is  located at Fort Langley on the  2 Fraser.  3 THE COURT:  Yes.  Yes.  4 MR. RUSH:  Now, my lord, I include a section on the Hudson's Bay  5 Company as Agent of the Crown in response to what I  6 perceive to be an argument by the Province to the  7 effect that the -- there was doubt that Douglas acting  8 for the Hudson's Bay Company acting as Agent for Crown  9 that he was acting solely either for himself or for  10 the Hudson's Bay Company's interests.  And what I've  11 done here is to set out the references to the fact  12 that it was clear that Douglas was acting as Agent for  13 the Crown.  And I refer you to 47, firstly to the  14 statements made by Edward Ellice in 1856, and there  15 was -- those appear at the top of 48, and I draw your  16 attention to the fact, my lord, that Ellice at that  17 time said:  18  19 "It was also considered that the company were  20 from their position better acquainted with the  21 Indian races than any other persons; and that  22 they would be best able to make any  23 arrangements which might be necessary with the  24 tribes occupying Vancouve Island as the charter  25 cannot, of course, interfere with the rights of  26 the aborigines."  27  28 And farther down, my lord, Ellice continued:  29  30 "'They have been vested with the property of  31 the land' (as Lord Grey expressed it in the  32 House of Lords) 'as trustees of the duties of  33 the government."  34  35 Now, the above statement of Ellice, quoting Sir Earl  36 Grey, sets out Ellice's understanding, and Ellice's  37 concurrence, that the Company acted as agent of  38 Imperial policy with respect to the lands.  39 Further support is found in 1859 for what -- a  40 notice that was published in the Victoria Gazette by  41 the Colonial Crown's solicitor, and that notice is  42 found at the bottom of 49, and it states in part --  43 THE COURT:  Before you do that, Mr. Rush, I am sure there is  44 Duff's map that had the first nine treaties.  4 5 MR. RUSH:  Yes.  46 THE COURT:  Is there a collection somewhere of the other five?  47 MR. RUSH:  My lord, in Duff's article all of the treaties are 25797  Submissions by Mr. Rush  believe they are all mapped as  1  there set out and I  2  3  THE  COURT  4  MR.  RUSH:  5  6  7  THE  COURT  8  MR.  RUSH:  9  THE  COURT  10  11  MR.  RUSH:  12  THE  COURT  13  MR.  RUSH:  14  15  16  17  18  19  20  21  22  23  24  25  26  THE  COURT  27  28  MR.  RUSH:  29  30  THE  COURT  31  32  MR.  RUSH:  33  34  THE  COURT  35  MR.  RUSH:  36  37  38  39  40  41  42  43  44  45  46  47  well.  :  Yes.  All right.  No.  Excuse me.  Just the southern Vancouver Island  treaties are mapped, but the others are identified  as --  :  All right.  -- their location.  :  I can find them in that same reference as you  mentioned about the first nine?  Yes, that's right, my lord.  :  Thank you.  Just drawing your attention to the notice at the  bottom of 49 where it says in part, the underscored  portion:  "And whereas, the title to said land commonly  known as the Indian Reservation is vested in  Government, and that no sale, alienation or  encumbrance of any part or portion thereof has  been made to any person or persons"  So clearly that notice acknowledges that that reserve  was purchased by the Hudson's Bay Company for the  Government.  :  Is it convenient to take the next adjournment, Mr.  Rush?  My lord, I wonder if I could just -- well, I'd like  to finish this section.  :  I am sure Miss Laara is happy to accommodate in that  regard.  Well, I'll try to -- I don't intend to go through  this chapter and verse, my lord.  :  All right.  Just referring you to the bottom of page 50:  Douglas' response to the House of Assembly of  Vancouver Island on February 5 is wholly consistent  with a view that he considered that in making the  treaties with the Indians for cession of their lands  that he acted as agent of the Crown.  And this is  borne out, my lord, by what he had to say on 51 and I  direct your attention to paragraphs two and three and  then to the final underscored paragraph:  "It may further interest the House to know that  the Title to those Lands is vested in the  Crown, and that the Indians of themselves can 25798  Submissions by Mr. Rush        1 convey no Title to  any part of their Reserves  2 either by sale or lease."  3  4 And then, my lord, I draw your attention that the  5 language of the treaty states that the land is sold by  6 the Indians to the Hudson's Bay Company.  There is no  7 language in the treaty about title being in the Crown,  8 or about the Indians being unable to sell or lease the  9 land in the Reserve.  And it is reasonable, therefore,  10 to conclude from Douglas' characterization of the  11 treaty that he understood it to be in conformity with  12 the principles regarding native title.  13 And then, my lord, I draw your attention to  14 Douglas' advising the Colonial Office and their  15 acknowledgment of the Gazette notice.  And then at the  16 bottom of 52 I refer you to the fact that Douglas'  17 address was proposed by the Speaker of the House in  18 which he referred to the Douglas agreement with the  19 Songhee Indians as a "treaty."  20 And then, my lord -- and I set out that on that  21 passage at the top of 53.  But then I direct your  22 lordship's attention to the bottom paragraph of 53  23 which concludes this section in which in my submission  24 completely disposes of any issue as to who Douglas was  25 acting on behalf of when he made the treaties.  The  26 Court of Appeal in Claxton and Saanichton Marina laid  27 to rest any suggestion that the Hudson's Bay Company  28 wasn't acting as agent for the Crown in concluding  29 treaties with the Indians, and at page 83 said  30 "...that position is untenable," and this applied to  31 all of the agreements or treaties negotiated by  32 Douglas.  33 THE COURT:  Is that what the Court said or is that what you  34 argue?  35 MR. RUSH:  No, my lord.  That's not -- that is my argument and  36 it's what the court said.  37 THE COURT:  All right.  That's what you say the court said.  38 MR. RUSH:  Well, I believe I was faithful to the language of the  39 decision.  4 0 THE COURT:  All right.  41 MR. RUSH:  Thank you, my lord.  I can take the break then.  42  4 3 (PROCEEDINGS ADJOURNED)  44  45  46  47 25799  Submissions by Mr. Rush        1  2 I hereby certify the foregoing to  3 be a true and accurate transcript  4 of the proceedings transcribed to  5 the best of my skill and ability.  6  7  8  9  10  11 Laara Yardley,  12 Official Reporter,  13 UNITED REPORTING SERVICE LTD.  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 25800  Submissions by Mr. Rush        1 (PROCEEDINGS RESUMED  FOLLOWING SHORT RECESS)  2  3  SUBMISSIONS BY MR. RUSH:  4  5 MR. RUSH:  On page 54, my lord, turning to the recognition of  6 aboriginal title in the Mainland Territory, 1858, I  7 want to draw your attention to three critical  8 despatches which provide evidence of Imperial policy  9 regarding native title specific to the mainland of  10 British Columbia.  11 Now, these three despatches are set out here,  12 Labouchere to Douglas, February 1, 1858; Lytton to  13 Douglas, 31 July, 1858; and Carnarvon to Douglas,  14 April 11, 1859.  15 Now these despatches, my lord, are expressions of  16 Indian title by officers of the Crown in England.  And  17 they are important because of their timing, repetition  18 as well as content.  19 Now, my lord, taken together, these despatches,  20 firstly, contain language showing British policy  21 recognizing native title rights to land on mainland  22 B. C, prior to, at and after the establishment of the  23 mainland colony.  So the timing there is significant.  24 The first of these, and I will be discussing them each  25 in turn.  The first of these expresses, (a) natives  26 have rights to be recognized, parameters or contents  27 not yet clearly defined; (b) Natives cannot part with  28 soil absent Crown consent, and I say strongly implying  29 natives have title rights to land to start with.  And  30 number two above, expresses, (a) that natives have  31 rights in land; and, (b) can be given up with native  32 consent; and, (c) must be compensated.  Number three  33 expresses that natives have rights in land; and (b),  34 must be compensated by the Crown.  35 Now, taken together these despatches express three  36 essential elements entailed in Indian title:  Native  37 interests in land capable of being parted with to the  38 Crown for compensation to be extinguished with consent  39 of natives.  And, second, the three despatches are  40 authored by three separate officers of the Colonial  41 Office.  Now, it is important to note, my lord,  42 that -- to note that of the three key despatches, only  43 one, that is, number two, is included in the document  44 relied upon by the province in Papers relating to the  45 affairs of British Columbia, which is Exhibit 1142.  46 It's been acknowledged by the province, Papers was not  47 a complete compilation of all despatches between the 25801  Submissions by Mr. Rush        1 Colonial Office and the  governor.  The omission of a  2 despatch from Papers is not because they were somehow  3 unimportant or not to be weighed as heavily as others,  4 but more likely for what they tended to show.  5 The first despatch, number one, pre-dates  6 establishment of B.C. as a colony and ante-dates the  7 first entries on Papers.  And our last despatch,  8 number three, responded to events concerning the  9 Songhees reserve in Victoria, although the policy was  10 distinctly expressed as applying to Vancouver Island  11 and British Columbia.  12 Now, my lord, we say that these three official  13 despatches relate specifically to Indian title on the  14 mainland.  There were other despatches dealing with  15 the Indian Reserve system and with Indians generally,  16 but as part of the common law and the common  17 understandings of the Colonial Office, it was not  18 necessary to constantly refer to Indian title.  19 Douglas was reminded of it by Labouchere on the first  20 needful occasion before the colony of B.C. was  21 established.  He was reminded again by Lytton on the  22 eve of the establishment of the colony, 31 July, 1858,  23 and finally triggered by a question of title at  24 Songhees, Douglas was reminded by Carnarvon of the  25 policy of Her Majesty's government as to Indian title  26 both on Vancouver Island and in the Colony of British  27 Columbia.  That Douglas did not proceed with monetary  28 compensation on the mainland is clearly related to  29 physical restraints, there as well as on Vancouver  30 Island.  31 Now, with those introductory words, I want to turn  32 now to the consideration of each of these despatches.  33 My lord, the long-standing policy of Great Britain to  34 recognize native title was explicitly enunciated with  35 regard to the mainland in the despatch I will now  36 refer you to.  Before the mainland colony of British  37 Columbia was created, there was concern that British  38 interests might be jeopardized by an anticipated  39 influx of Mormon settlers from Utah.  Secretary of  40 state for the Colonies Labouchere wrote to Douglas,  41 who was by this time governor of Vancouver Island and  42 the nearest officer of the Crown, and he noted that  43 while the aprehended immigration may not take place,  44 Her Majesty's Government were of the opinion -- and I  45 take you to the second paragraph --  46  47 "Should they apply for admission to occupy any 25802  Submissions by Mr. Rush        1 portion of the  northwestern territory  2 peacefully and as a community or in scattered  3 communities:  You will remember that the soil  4 of this territory belongs to the Crown, subject  5 to such rights as may be recognized in the  6 Indian tribes (who are not authorized to part  7 with the soil without the permission of the  8 Crown)."  9  10 And then he goes on to -- with his despatch.  11 Now, my lord, a draft of this despatch, including  12 the language set out in boldface, had been approved by  13 the Foreign Office and by the secretary of state for  14 the Colonies, Henry Labouchere.  Hammond was permanent  15 head of the Foreign Office under secretary for Foreign  16 Affairs, and we say this shows the wide circulation of  17 the letter to various government offices in London.  18 Now the foregoing instructions sent to Douglas show  19 that the views of Her Majesty's Government in 1858,  20 with respect to the mainland area of what is now  21 British Columbia, were consistent with the principles  22 of aboriginal title recognized and expressed in common  23 law and in the Royal Proclamation.  Aboriginal title  24 and rights was recognized and could only be  25 surrendered to the Crown.  And, clearly, if natives  26 can part with soil, they must have rights of title in  27 the soil.  28 My lord, within a few months, faced not with the  29 anticipated Mormon settlers but with an influx of  30 foreign gold seekers, the Imperial Government was  31 forced to alter its plans and somewhat hurriedly to  32 establish the mainland colony of British Columbia.  33 Again, aboriginal title was recognized and the need  34 for land cession treaties noted.  35 Now, just before I go to that, my lord, I want to  36 draw your attention to the fact that between February  37 1st, 1858 and July 31st, 1858, there were a number of  38 despatches between Douglas and the Secretary of State.  39 The province relies on some of these in its argument.  40 These despatches, however, must be read in light of  41 Labouchere's instructions that natives have rights in  42 the soil and they are not authorized to part with  43 those rights without Crown permission.  44 None of the despatches relied on by the province  45 repudiate the instructions of the Colonial Office  46 through Mr. Labouchere.  For his part, Douglas  47 reported on the state of affairs in the gold fields. 25803  Submissions by Mr. Rush 1            The Colonial Office  wished assurances that there would  2 be regular government in the gold country.  Now, the  3 province argues that Douglas formulated a policy in  4 three despatches of this period:  June 10, 15 and 26.  5 A reading of these despatches does not bear out that  6 conclusion.  On June 10, Douglas gave a brief  7 narrative of what he -- gave what he called "a brief  8 narrative of my proceedings and the information  9 gathered..."  10 On June 15, he conveyed information omitted on his  11 observations of the gold regions.  On June 26th, he  12 reported on the regulations established in furtherance  13 of the Crown instructions set out on February 1st,  14 1858, the previous Colonial Office despatch to which I  15 have drawn your lordship's attention.  By this, we  16 say, it is evident that Douglas was mindful of the  17 Colonial Office's instructions.  On the eve of the  18 establishment of the mainland colony, Douglas was  19 again instructed about the recognition of aboriginal  20 title and the need for land cession treaties.  21 Now, I go to that now, my lord, and part way  22 through the next paragraph I point out that by  23 despatch dated 31 July, 1858, Secretary of State for  24 the Colonies, Sir Edward Bulwer Lytton, wrote to  25 Douglas sending him instructions and advising him of  26 Indian policy for the new colony.  And he says at the  27 top of 61.  28  29 "I have to enjoin upon you..."  30  31 And I ask your lordship to be mindful of that  32 language, I think:  33  34  35 " consider the best and most humane means  36 of dealing with the Native Indians.  The  37 feelings of this country would be strongly  38 opposed to the adoption of any arbitrary or  39 oppressive measures towards them."  40  41 Then he goes, farther down, about ten lines from  42 the bottom:  43  44 "Let me not omit to observe, that it should be  45 an invariable condition, in all bargains or  46 treaties with the natives, for the cession of  47 lands possessed by them, that subsistence 25804  Submissions by Mr. Rush        1 should be supplied  to them in some other shape,  2 and above all, that it is the earnest desire of  3 Her Majesty's Government that your early  4 attention should be given to the best means of  5 diffusing the blessings of the Christian  6 Religion of civilization among the Natives."  7  8  9 These instructions, my lord, and in Papers, where  10 it is located, to be found in Exhibit 1142, this  11 document or despatch is referred to as general  12 instructions.  These instructions leave no doubt that  13 the Imperial authorities contemplated the making of  14 land cession treaties with the native people of the  15 mainland Colony of British Columbia, and it is worth  16 noting that the draft of the above despatch had been  17 the subject of a lengthy minute by Carnarvon which  18 resulted in changes to the contents.  The language  19 regarding land cession treaties was not questioned nor  20 was it changed.  21 In August, 1858, my lord, the mainland colony was  22 formed and the need for land cession treaties with the  23 natives was one of the first orders of business noted.  24 Now, I simply wish to pause here, my lord, to say  25 that the Lytton despatch simply reiterates for the  26 mainland what was the existing policy, in our  27 submission, for the Colony of Vancouver Island.  And,  28 in our submission, it was a continuous policy  29 involving the two aspects of the purchase of land of  30 this -- the aboriginal title to which was resonant in  31 the native people by cession and the setting aside of  32 reserves for their use and security.  33 Now, my lord, following the establishment of the  34 Colony of British Columbia, in one of the despatches,  35 dated September 2nd, 1858, Lytton to Douglas, Lytton  36 had occasion to refer to his despatch of July 31st.  37 Now, my lord, I go into this at this juncture because  38 it is a matter that's raised by the province.  And I  39 draw your attention to this despatch which says, in  40 part, on page 62:  41  42 "In my despatch of 31 July, No. 6, I directed  43 your attention to the treatment of the native  44 Indians in the country which had it has so  45 recently decided to establish as a British  46 colony.  I regard that subject as one which  47 demands your prompt and careful consideration." 25805  Submissions by Mr. Rush 1  2 Then he transmits a copy of a letter from the  3 Aborigines Protection Society invoking the protection  4 of Her Majesty's Government on behalf of these people.  5 And he goes on:  6  7 "I readily repeat my earnest injunction to you  8 to endeavour to secure this object.  At the  9 same time, I beg you to observe that I must not  10 be understood as adopting the view of the  11 society as to the means by which this may be  12 best accomplished."  13  14 Enclosed with this despatch, my lord, was the  15 Aborigine Protection Society letter.  I wish to draw  16 your attention to two parts of it.  The first part, in  17 chronological sequence, is set out here in part:  18  19 "It would seem that a treaty should promptly be  20 made between the delegates of British authority  21 and the chiefs and their people, as loyal,  22 just, and pacific as that between William Penn  23 and the Indians of Pennsylvania, but that more  24 stringent laws should be made to ensure that  25 its provisions be maintained with better faith  26 than what was carried out on the part of the  27 whites."  28  29 Later in the Aborigine Protection letter this  30 passage follows:  31  32 "To accomplish the difficult but necessary task  33 of civilizing the Indians and of making them  34 our trusty friends and allies, it would seem to  35 be indispensable to employ in the various  36 departments of government a large proportion of  37 well-selected men, more or less of Indian  38 blood, who might not only exert a greater moral  39 influence over their race than we could  40 possibly do, but those recognized positions  41 among the whites would be some guarantee that  42 the promised equality of races should be  43 realized.  The adoption of these or similar  44 measures would, we believe, propitiate the  45 goodwill of the Indians; and instead of  46 obstructing the work of colonization, they  47 might be made useful agents in peopling the 25806  Submissions by Mr. Rush        1 wilderness with  prosperous and civilized  2 communities, of which they one day might form a  3 part."  4  5  6 Now, my lord, when Lytton indicated in his letter  7 of September 2nd, 1858, ". . .that I must not be  8 understood as adopting the views of the society as to  9 the means by which this may be best accomplished", he  10 was referring here to Chesson's proposal, Chesson  11 being in the Aborigine Protection Society, to install  12 Indians in government departments as a way of exerting  13 influence over their tribe members.  To read Lytton's  14 comment in any other way would mean that Lytton was  15 renouncing what he had instructed on July 31st, 1858,  16 three days earlier, which was:  "It should be an  17 invariable condition in all bargains or treaties with  18 the Natives for the cession of land promised them,  19 that subsistence should be supplied to them."  20 Now, my lord, this is significant because the  21 province argues that this is evidence that Lytton  22 intended to refer to the proposal made by the  23 Aborigines Protection Society that treaties should be  24 promptly made between the delegates of British  25 authority and the chiefs and the people.  And I say  26 that a reading of the despatch from Lytton of  27 September 2nd, 1858 cannot be read as referring to  28 that particular proposal but rather refers to that  29 second proposal, with regard to the installation of  30 Indians in government departments.  And I say this  31 obviously, my lord, because it would make no sense  32 three days later to resile from, in this manner,  33 direct instructions to Douglas that he ought to take  34 cession treaties from the people.  35 MR. GOLDIE: What is the three days that you refer to?  36 MR. RUSH:  Between July 1st, 1858 to September 2nd, 1858.  37 Excuse me, my friend draws my attention to the  38 fact that the -- I jumped a month, my lord, my friend  39 correctly draws my attention to the fact that it's not  40 three days but a period of just over a month.  41 THE COURT:  July 31st to September 2nd?  42 MR. RUSH:  That's right.  43 MR. GOLDIE:  I was afraid the calendar was being abrogated.  44 MR. RUSH:  It doesn't detract in the slightest from the argument  45 I make, my lord, that in that period of time Lytton is  46 not resiling from a position that he had taken on July  47 31st, and this will become evident in a moment when in 25807  Submissions by Mr. Rush        1 fact the same  instructions are repeated in April of  2 1859.  3 Now, my lord, I say further at the bottom of page  4 63, if it was Lytton's intention to so resile from the  5 instructions made to Douglas on July 31st, 1858, he  6 could have said quite directly, if that was what he  7 intended.  On November 5th, when Douglas responded to  8 Lytton, he, Douglas, referred to the Chesson letter  9 and he said the following, top of 64:  10  11 "I shall not fail to give the fullest effect to  12 your instructions on that head as soon as the  13 present pressure of business has somewhat  14 abated.  I may, however, remark that the native  15 Indians tribes are most protected in all their  16 interests to the most utmost extent of our  17 present means."  18  19  20 Now here, my lord, the instructions referred to by  21 Douglas are those of Lytton's of 31 July, 1858, and  22 what I say is that the present means that he is  23 referring to must refer to the financial capacity of  24 the new Colonial Government to give effect to the  25 instructions from Lytton.  26 Mr. Justice Hall commented on this despatch in  27 Calder, and he concluded:  28  29 "A further observation in respect of the letter  30 of instructions of July 31, 1858..."  31  32 And he there sets it out,  33  34 "...having in mind the use of the word 'cession'  35 in this context, how can it logically be said  36 that the Imperial Government has not at the  37 time recognizing that the natives had something  38 to cede?  What they had to cede was their  39 aboriginal right and title to possession of the  40 lands subject to the Crown's paramount title."  41  42 The Imperial Government, through Lytton, recognized  43 that native people on the mainland of British Columbia  44 had an aboriginal title to lands and that title could  45 be ceded by treaty with the native inhabitants.  46 On December 30, 1858, Lytton asked Douglas whether  47 it might be feasible to settle the Indians permanently 25808  Submissions by Mr. Rush        1 in villages and whether  Douglas had thought the  2 natives might consent to a small direct tax, the  3 proceeds of which would be spent strictly and solely  4 for their benefit.  And I draw your attention to the  5 passage of Lytton to Douglas.  6 Lytton does not suggest in this passage that  7 settlement in villages would abrogate aboriginal  8 title.  Douglas relied, on March 14th, 1859, in a  9 lengthy despatch -- sorry.  Excuse me, Douglas replied  10 on 14 March 4, 1859 in a lengthy despatch outlining  11 for his proposals for the Indian people in British  12 Columbia.  He thought that the Indians could be  13 settled in self-supporting permanent villages on lands  14 secured to them as reserves.  These communities could  15 be self-supporting in one of two ways:  In districts  16 where land was valuable, a portion of those reserves  17 not required for Indian use could be sold or leased,  18 thus creating capital for Indian settlement.  In  19 districts where the white population was sparse and  20 the land unproductive, the Indians would be able to  21 continue to support themselves as hunters and  22 fishermen.  Douglas also proposed that each family  23 would be assigned a distinct portion of the reserved  24 land for their use, but for the present they would be  25 without power to sell or otherwise alienate the land.  26 His idea in assigning separate portions in the reserve  27 was to foster individual effort and earnings to  28 encourage individual Indians or families to invest  29 such earnings in "the purchase of property apart from  30 the reserve, which would be left entirely at their own  31 disposal and control."  32 Now, the management of reserves, according to this  33 plan, can be seen with Douglas's despatch to Lytton on  34 March 14th, 1859.  And here he says, my lord, about  35 the fourth or fifth line down:  36  37 "Respecting the course I propose to adopt in the  38 disposal and management of the land reserved  39 for the benefit of the Indian population at  40 this place, the plan proposed being briefly  41 thus:  that the Indians should be established  42 on that reserve and the remaining unoccupied  43 land should be let out on a lease at an annual  44 rent to the highest bidder and that the whole  45 proceeds arising from such leases should be  46 applied to the exclusive benefit of the  47 Indians." 25809  Submissions by Mr. Rush        1 Douglas's suggestion  related directly to Lytton's  2 questions regarding the feasibility of permanently  3 settled communities and how these might be supported.  4 Neither Lytton nor Douglas suggested that reserves  5 would abrogate the requirement of the Crown to deal  6 with original -- aboriginal title rights or to  7 purchase lands from the natives.  Douglas's suggestion  8 that natives could be encouraged to purchase land  9 outside the reserves clearly contemplated that  10 aboriginal title to such lands had first been  11 extinguished.  12 Now, in setting out his suggestion for leasing of  13 reserve lands, Douglas used an example of the reserve  14 at Victoria, and this reserve was established under a  15 land cession treaty with the Songhees in which they  16 had been paid for land to which they claimed.  17 Now, my lord, I will ask you to go over to page 68,  18 and I want to direct your attention now to the third  19 of the three despatches.  20 The Imperial obligation to recognize aboriginal  21 title and to compensate the Indians for surrender of  22 title was reiterated by Lord Carnarvon in a despatch  23 dated 11 April, 1859.  And I point out, my lord, that  24 this is, of course, after Lytton's suggestions and  25 Douglas's response made on March 14th, 1859.  And what  26 Carnarvon says is this, and I begin with the sentence:  27  28 "In the case of the Indians of Vancouver's  29 Island..."  30  31 And here is the critical part, my lord,  32  33 "...and British Columbia, Her Majesty's  34 Government earnestly wish that when the  35 advancing requirements of colonization press  36 upon lands occupied by members of that race,  37 measures of liberality and justice may be  38 adopted for compensating them for the surrender  39 of the territory which they had been taught to  40 regard as their own."  41  42  43 The Crown requirement of recognizing aboriginal  44 title and extinguishing it by purchase was clearly  45 enunciated in the above despatch by Carnarvon as  46 applying to both Vancouver Island and the mainland  47 Colony of British Columbia.  The fact that no treaties 25810  Submissions by Mr. Rush 1            were concluded in the  mainland colonies, has led some  2 to assert that Imperial policy regarding aboriginal  3 title was different from the colonies of Vancouver  4 Island and British Columbia, that aboriginal title was  5 never recognized on the mainland.  This conclusion is  6 wholly unwarranted.  Even without the above clear  7 documentation to the contrary, it is patent that it  8 would not have been feasible to pay the Indians on  9 Vancouver Island for their land and to deny equal  10 treatment to Indians on the mainland.  The Indians on  11 the Island and mainland were closely connected, were  12 in constant contact, and would have regarded  13 differential treatment as unacceptable.  14 Now, my lord, what I do here then is to set out the  15 recognition by the government, the Colonial Office, of  16 the close ties and contacts between the Indian peoples  17 of Vancouver's Island and the mainland, and I make  18 reference to the post journal at Fort Langley and on  19 the Fraser River.  I draw your attention at the bottom  20 of 69 to the fact that the Saanich people travelled to  21 Vancouver Island and had a summer fishing village at  22 Point Roberts on the mainland, and I draw attention to  23 your lordship on page 70 to the fact that George  24 Simpson reported in 1829 from Fort Langley that:  25  26 "Its permanent occupants, however being few in  27 number, are intimidated by the large and  2 8 powerful bands that come to the river from  29 Vancouver's Island."  30  31 And I say, my lord, that this is demonstrative of  32 the fact that there is no question that the Colonial  33 Office was fully aware of the close ties and contacts  34 between the Indians on the mainland and at Fort  35 Langley, and the Indians on Vancouver's Island.  36 Now, my lord, on 71, I summarize the importance of  37 Carnarvon's despatch to Douglas of 11 April, 1859.  38 THE COURT:  That's the third one?  39 MR. RUSH:  Yes.  And I say, it was virtually identical to the  40 instructions given by Lytton to Douglas on the eve of  41 the formation of the mainland colony on 31 July, 1858.  42 THE COURT:  That's number two?  43 MR. RUSH:  That's number two.  It clearly expresses that natives  44 have rights in the land, and that they must be  45 compensated by the Crown when they surrender --  46 surrender being the language of the despatch -- their  47 territory, also the language.  This despatch applied 25811  Submissions by Mr. Rush 1            to both Vancouver Island  and the mainland colony.  And  2 fortunately, my lord, Carnarvon's instructions came  3 after the passing of the act to establish the Colony  4 of British Columbia, after Douglas's commission and  5 after Douglas's instruction with regard to the  6 mainland colony.  The instructions to Douglas of  7 September 2nd, 1858, were not intended to supersede  8 the instructions of Douglas of July 31, 1858.  9 THE COURT:  That's number one?  10 MR. RUSH:  That's number — no.  No, my lord.  11 THE COURT:  That's number two?  12 MR. RUSH:  That's number two.  Both Lytton's instructions of  13 July 31, 1858, number two, and Carnarvon's  14 instructions of April 11, 1859, number three, were  15 intended to be complementary to the Douglas  16 instructions of September 1, 1858, and expressly  17 acknowledged the existence of Indian title to land in  18 the mainland colony.  19 Viewed against the background of Carnarvon's  20 instructions of April 11, 1859, number three, and the  21 timing of those instructions, Mr. Justice Hall in  22 Calder we say was right in characterizing the Lytton  23 instructions of July 31, 1858, number two, as further  24 instructions in the sense of being additional and  25 complementary instructions to Douglas.  That they were  26 instructions is plain from the words, "I have to  27 enjoin upon you" and as well from the reference in  28 Papers to general instructions.  29 Now, my lord, I turn now to a consideration of the  30 instrumentalities in establishing the mainland colony  31 in 1858.  And I say that, at the bottom of 72, that  32 the Colony of B.C. was established by an act to  33 provide for government of British Columbia on the 2nd  34 of August, 1858, and no doubt, my lord, here is where  35 my three days calculation arose because it was three  36 days after 31 July, 1858, that the British parliament  37 enacted an act to provide for government of British  38 Columbia.  39 On September 2nd, 1858, Letters Patent appointing  40 Douglas as governor over the colony and its  41 dependencies, and instructions no James Douglas were  42 issued.  As well, on September 2, 1858 an order-in-  43 council empowering the Governor of British Columbia to  44 make laws and to provide for the administration of  45 justice in the said colony was issued.  46 There is nothing on the face of these statutes and  47 instruments which abrogates or limits the application 25812  Submissions by Mr. Rush        1 of the Imperial common  law, nor the operation of the  2 Royal Proclamation of 1763, to the mainland.  In fact,  3 the instructions to Douglas expressly enjoined him  4 from making any law "...of an extraordinary nature and  5 importance, whereby our prerogative or the rights and  6 properties of our subjects residing in our said  7 colony... may be prejudiced."  The fundamental  8 principles of aboriginal rights continued into the  9 mainland colony and were applicable there.  10 Now, my lord, I am going to consider the  11 commission, the instructions and the act in turn.  12 First the commission.  The Letters Patent appointed  13 James Douglas governor and commander-in-chief over the  14 colony of British Columbia.  Among other things, the  15 commission empowered Douglas:  16  17 "to make, ordain, and establish all such laws,  18 institutions, and ordinances as may be  19 necessary for the peace, order and good  20 government of our subjects and others residing  21 in our said colony and its dependencies."  22  23 On the strength of this, the province argues that  24 Douglas had the fullest "amplitude" of powers to make  25 laws in respect of the mainland colony of British  26 Columbia.  The province argues that Douglas, like an  27 autocrat, could make what laws he pleased.  Douglas's  28 power and his commission, however, was limited by one  29 major proviso.  After the foregoing the commission  30 goes on:  31  32 "...provided that such laws, institutions and  33 ordinances are not to be repugnant but, as near  34 as may be agreeable, to the laws and statutes  35 of our United Kingdom of Great Britain and  36 Ireland."  37  38 Furthermore, my lord, in the same Letters Patent  39 but earlier in sequence, this section is to be found:  40  41 "And whereas we have ordered and authorized,  42 empowered and commanded our governor to make  43 provision for the administration of justice..."  44  45 And I ask you to go down to the underscored  46 portion:  47 25813  Submissions by Mr. Rush        1 "...subject to all  such rules and regulations as  2 shall be prescribed in and by our instructions  3 under our signet and Sign Manual accompanying  4 our said commission or by any future  5 instructions as aforesaid."  6  7  8 Now, Douglas's laws could not, therefore, derogate  9 or be repugnant to the laws of the United Kingdom,  10 including the common law in any Royal prerogative.  11 Douglas did not have an unfettered jurisdiction by  12 this commission to make whatever laws he pleased.  He  13 wasn't a viceroy or, for that matter, an autocrat.  14 The common law -- as reflected in Symonds -- and the  15 law of the Royal commission -- as reflected in the  16 Royal Proclamation of 1763 -- could not be abrogated  17 by laws made in the Colony by Douglas.  18 Let me go back to the commission, my lord.  19 Commission further advised Douglas that:  20  21 "We do by these presents require and enjoin you  22 that in making all such laws, institutions and  23 ordinances, you do strictly conform to and  24 observe the rules, regulations and restrictions  25 which are or shall be in that respect,  26 prescribed to you by our instructions under our  27 Royal Sign Manual and signet accompanying this  28 our commission, or by any future instructions  29 as aforesaid."  30  31  32 THE COURT:  Is that not the same quote as on the previous page  33 or is it just re-stated?  34 MR. RUSH:  My lord, this language appears more than once in  35 the —  36 THE COURT:  Well, I can look at it anyway.  37 MR. RUSH:  And as is evident by the next passage in those  38 commissions -- excuse me, in that commission, such  39 "further instructions" were referred to in paragraph  40 two "by us or through one of our principal Secretaries  41 of State."  42 THE COURT:  But did not all his laws have to be approved by the  43 Imperial parliament?  44 MR. RUSH:  No, not all.  Some were confirmed by the Queen.  45 THE COURT:  Yes.  All right.  I am sure you will come to it.  46 MR. RUSH:  Yes, I am coming to that, my lord.  47 The point that I make here is that the laws were 25814  Submissions by Mr. Rush        1 subject to instructions,  not only the instructions  2 that were given to him as of September 2nd, 1858, but  3 such other future instructions as would have been  4 given to him "by our principal Secretaries of State."  5 By this, the commission provides for future  6 instructions to Douglas through the Colonial Office,  7 Secretaries of State.  This was the normal means by  8 which instructions were transferred to colonial  9 governors.  Such instructions were conveyed to Douglas  10 by Carnarvon's letter of April 11, 1859, number three.  11 Further, nothing in the commission suggests that prior  12 instructions were to be superseded or negated by the  13 commission.  The general instructions of 31 July,  14 1858, continued to apply.  And that's number two, my  15 lord.  And you will recall that by the transfer letter  16 of September 2nd, 1858, Lytton referred to and  17 incorporated the general instructions of July 31,  18 1858.  19 Now, I refer to one further relevant passage in the  20 Letters Patent and it is Roman VII:  21  22 "You are as much as possible, to observe in the  23 passing of all laws, that each different matter  24 be provided for by a different law."  25  26 And then going on to the underscored part:  27  28 "...and that no law whatever be suspended,  29 altered or continued, revived or repealed by  30 general words, but that the title and date of  31 such law so suspended, altered, continued,  32 revived or repealed, be particularly mentioned  33 and expressed in the enacting part."  34  35 Alteration or repeal of laws could not be done in  36 general words.  Such was required to be done  37 specifically.  38 Now, my lord, the instructions accompanying the  39 commission provided for some more detailed  40 instruction.  Now, by Article V, Douglas's  41 instructions were subject to his receiving "any future  42 instructions as aforesaid", and they were not intended  43 to be self-limiting.  I draw your attention to article  44 XVIII, Douglas was prohibited from making:  45  46 "Any law of an extraordinary nature and  47 importance whereby our prerogative, or the 25815  Submissions by Mr. Rush 1                   rights and  property of our subjects residing in  2 our said colony, or the trade and shipping of  3 our United Kingdom and its dependencies may  4 being predjudiced."  5  6 The instructions, therefore, were not to prejudice  7 or impinge upon prerogative instruments.  8 THE COURT:  Is that what you intend to say, Mr. Rush, "the  9 instructions therefore were not prejudiced" or was it  10 "the law to be passed educates were not to prejudice"?  11 MR. RUSH:  The laws, my lord, the laws were not to prejudice or  12 impinge upon prerogative instruments, such as the  13 Royal Proclamation.  The article makes it clear  14 that -- and I should say, again, my lord, the laws  15 were not to derogate from the Royal Proclamation.  In  16 this respect it is a provision which is in accord with  17 the general law regarding prerogative instruments.  18 Furthermore, by this article Douglas could not make  19 laws prejudicing "rights and property of our subjects  20 residing in our said colony."  In this the native  21 title rights of the aboriginal people, surely subjects  22 of the Crown, could not be affected by land laws or  23 other proclamations or instruments made by Douglas in  24 making laws for the colony.  25 Now, let me turn to the third of the three  26 instrumentalities, a copy of an act to provide for the  27 government of British Columbia was transmitted to  28 Douglas by despatch from Lytton August 14th, 1858.  In  29 it Douglas is authorized to continue to act before the  30 arrival of his commission and instructions.  And there  31 was a time lapse, my lord, between the transmittal of  32 the statute for the creation of the mainland colony  33 and the transmittal of Douglas's commission and  34 instructions.  And what Lytton says here, Douglas is  35 authorized to continue to act and to "take without  36 hesitation such steps as you may deem absolutely  37 necessary for the government of the territory and as  38 are not repugnant to the principles of British law."  39 And I simply point that out as instructions, my lord,  40 which are consistent with the language of the  41 commission.  And Douglas received the act in that  42 despatch on October 21, 1858.  43 Now, my lord, with regard to this act, the province  44 argues that the act deemed the mainland colony of  45 British Columbia to be a settled colony.  And this  46 appears to be in support of their argument that the  47 colony of British Columbia was a settled colony by 25816  Submissions by Mr. Rush        1 force of law.  The  province's argument is founded on  2 the "whereas" clause of of the enactment and the  3 opening words of this provide:  4  5 "Whereas diverse of Her Majesty's subjects and  6 others, have by the licence and consent of Her  7 Majesty, resorted to and settled on certain  8 wild and unoccupied territories of the  9 northwest coast of North America."  10  11  12 The act makes no other reference to "settled"  or  13 "unoccupied" territories.  And we say it does not by  14 the force of its enacting power, declare "deemed" the  15 territories or the colony to be settled.  We say it is  16 a thin thread indeed for the province to say the  17 Colony of British Columbia was a "settled" colony in  18 the Blackstonian tradition on the basis of the  19 assertion, clearly erroneous, in the recitation  20 clause.  It was not true that the territory of the  21 northwest coast or the territories were "wild" or  22 "unoccupied".  Certainly, if there were any such  23 territories they were isolated and scattered, not the  24 whole of what was known "by the designation of New  25 Caledonia".  Simpson himself said there were some  26 80,000 inhabitants in New Caledonia, mostly Indians.  27 Whatever was in the minds of the British Parliament  28 when these worlds were used, they were certainly  29 misguided as to the reality on the ground.  The land  30 was not wild and it was occupied by many and diverse  31 Indian peoples.  32 Now, the argument that the colony of British  33 Columbia was a settled colony, and hence no rights  34 flowed to its native denizens as a matter of  35 constitutional interpretation, not only ignores the  36 reality on the ground but it also, in our submission,  37 is a revival of old constitutional principles which  38 had no relevance to the changing conditions of a  39 colony with an Indian occupied land.  The province's  40 fiction that the colony of British Columbia was a  41 "settled" colony is particularly controverted by the  42 pre-1858 conduct of Douglas while governor of  43 Vancouver's Island in treating with the native people  44 there.  Further, the Colonial Office clearly wanted  45 Douglas to treat with the Indian people on the  46 mainland in the same way, as evidenced by the February  47 11, 1858 despatch from Labouchere, which is number 25817  Submissions by Mr. Rush        1 one.  In short, my lord,  the 1858 act to provide for  2 the government of British Columbia says nothing about  3 the status of the colony of the mainland under  4 constitutional law.  5 Now, I want to deal more directly with the  6 characterization of the colony.  The law applicable to  7 the mainland colony of British Columbia was the same  8 law that applied to Vancouver's Island.  The legal  9 principles relating to aboriginal title are founded in  10 the common law and were recognized and affirmed in the  11 proclamation.  And these principles pre-existed the  12 establishment of the mainland colony and applied to it  13 upon its creation, and we have made this argument on  14 the basis of the review of the commission, the  15 instructions and the act.  16 Now the characterization, my lord, of the mainland  17 colony as settled, is, we say, irrelevant in terms of  18 the existence of aboriginal title.  Aboriginal title  19 does not depend for its existence on the  20 characterization of the colony.  The case law does not  21 consider the distinction between a settled, conquered  22 or ceded colony to be relevant.  And this is, I think,  23 apparent from Mr. Justice Hall's decision, his  24 decision in Calder after citing Chief Justice Marshall  25 in Johnson and M'Intosh.  And he said at the top of  2 6 81, my lord:  27  28 "The dominant and recurring proposition stated  29 by Chief Justice Marshall in Johnson and  30 M'Intosh is that on discovery or on conquest,  31 the aborigines of newly founded lands were  32 conceded to be the rightful occupants of the  33 soil with a legal as well as a just claim to  34 retain possession of it and to use it according  35 to their own discretion."  36  37  38 This proposition was adopted with approval by the  39 Supreme Court of Canada in Guerin.  Chief Justice  40 Dickson said this:  41  42 "The principle of discovery which justified  43 these claims gave the ultimate title in the  44 land in a particular area to the nation which  45 had discovered and claimed it."  In that  46 respect at least the Indians' rights in the  47 lands were obviously diminished but their 25818  Submissions by Mr. Rush 1                   rights of  occupancy and possession remained  2 unaffected."  3  4 THE COURT:  Does he mean that by discovery?  5 MR. RUSH:  Yes, unaffected by discovery.  6 THE COURT:  Yes.  Thank you.  7 MR. RUSH:  And this point I think is made next, my lord, after  8 citing Johnson and M'Intosh Chief Justice Dickson  9 said:  10  11 "The principle that a change in sovereignty over  12 a particular territory does not in general  13 affect the presumptive title of the inhabitants  14 was approved by the Privy Council in Amodu  15 Tigini..."  16  17  18 I didn't include the cite because we have set it  19 out before but he then sets out the Amodu Tigini  20 principle.  21 Now, my lord, it is our proposition that the  22 characterization of the colony as settled for the  23 purposes of determining the aboriginal title or rights  24 of the native inhabitants is really irrelevant, that  25 on the basis these principles, once discovered, the  26 presumption that the inhabitants have title is  27 accepted as given.  And I think that is fully borne  28 out by the authorities to which I have directed your  29 lordship.  30 Now in addition to that -- and I am on the bottom  31 of 81, my lord -- we have argued that the Royal  32 Proclamation is a major prerogative legislation which  33 applied to the Mainland Colony of British Columbia, as  34 part of the Crown's constituent power.  And I have  35 directed your lordship to where we make the argument  36 in volume two.  As such, it could be invoked in  37 relation to all British colonies, regardless of the  38 mode of acquisition.  The creation of the mainland  39 colony by statute empowered Douglas to make ordinary  40 laws in relation to the colony but did not preclude  41 the Crown's constituent power exerciseable on the  42 basis of the principles set out in the Proclamation.  43 The law-making power authorized by Douglas must be  44 viewed in the light of the commission and instructions  45 to Douglas, and these constrained the governor's power  46 in such a manner as to avoid repugnancy to the British  47 common law and the extant Royal prerogatives.  I also 25819  Submissions by Mr. Rush        1 draw your lordship's  attention to another feature of  2 the act establishing the colony and that is that it  3 replaced the Jurisdiction Acts of 1803 and 1821, and I  4 have made that submission to you, and that it replaced  5 those acts so far as they extended to the Indian  6 territories which was part of the New Caledonia.  7 I go down to the bottom of 82 and I refer your  8 lordship to the bottom paragraph.  At the beginning of  9 January, 1860, laws were passed by the colony of  10 British Columbia with regard to the disposal of lands  11 in the mainland colony.  A proclamation regarding  12 lands on the mainland was issued on 4 January, 1860.  13 A further proclamation regarding the survey of town  14 and agricultural lands was proclaimed by Douglas on  15 January 20, 1860.  Following these proclamations,  16 Governor Douglas addressed the matter of aboriginal  17 title on the mainland.  18 And at the opening session of the Legislative  19 Council and House of Assembly, Douglas addressed the  20 members of government on the need to extinguish  21 aboriginal title in the district which had recently  22 been opened for settlement.  Here he says, my lord:  23  24 "The House of Assembly will have to provide  25 means for extinguishing, by purchase, the  26 native title to the lands in the districts of  27 Cowitchan, Chemainis, and Salt Spring Island,  28 which are now thrown open for settlement.  The  29 purchase should be effected without delay as  30 the Indians may otherwise regard the settlers  31 as trespassers and become troublesome."  32  33  34 MR. GOLDIE:  My friend is not suggesting that that was the  35 Legislative Council and House of Assembly of the  36 mainland?  37 MR. RUSH:  My lord, Douglas was governor of the mainland at the  38 time, and on March 1, 1860, this address was made to  39 the House of Assembly in Vancouver's Island and was  40 dealing with those districts of Cowitchan, Chemainis  41 and Salt Spring Island.  The point of putting it here,  42 my lord, is to place it in the context of the land  43 ordinances that were passed earlier in January of  44 1860.  45 MR. GOLDIE:  With respect to the mainland.  46 MR. RUSH:  My lord, my friend no doubt is going to make a  47 strident argument or a strong argument, with regard to 25820  Submissions by Mr. Rush        1 a distinction --  2 MR. GOLDIE:  Maybe both.  3 MR. RUSH:  Probably both.  -- distinction between the mainland  4 and Vancouver's Island.  I say it's a wholly false  5 distinction.  Douglas wasn't wearing one hat one day  6 and another hat the next day.  Douglas didn't divide  7 his brain into two parts.  Douglas had responsibility  8 for the Vancouver's Island and the mainland and when  9 the laws were passed in respect of -- the land laws in  10 respect of the mainland, your lordship cannot be  11 unmindful of what he is saying about the necessity to  12 extinguish title on Vancouver's Island.  13 Now, the significance of that follows in respect of  14 the legal opinion made by Judge Begbie about the  15 mainland.  In 1859, a report was made by a man by the  16 name of Captain Clarke.  This has become to be called  17 the Clarke Report.  It was made to the undersecretary  18 of State for the colonies and it proposed a detailed  19 policy for the disposition of lands in the new  20 mainland colony.  Captain Clarke's suggestion were  21 based on his experience in Australia.  And aboriginal  22 title was dismissed in his report in a single sentence  23 by him, and in his proposal it was assumed that the  24 aboriginal title had been extinguished under the  25 heading "Proposed Land Scheme" Clarke proposed a  26 scheme as follows, and he sets it out and he presumes,  27 and I draw your lordship's attention to the  28 underscored provision:  29  30 "...and that no aboriginal title exists or if  31 any, that it has been extinguished, and  32 separate provisions made for them."  33  34 He is here referring to the mainland.  The Clarke  35 report was sent to Governor Douglas for review.  36 Douglas gave it to Judge Begbie for his legal  37 analysis.  Begbie at that time was considered one of  38 the leading legal authorities.  He was probably the  39 only leading legal authority in British Columbia at  40 the time.  He had been sent out from England to be the  41 first judge of the new mainland colony.  And writing  42 from New Westminster under date of April 30, 1860,  43 Begbie reviewed the Clarke report at some length and  44 he remarked on the necessity to define Indian reserves  45 so that it could be known which lands were available  46 for preemption or purchase.  Begbie unequivocably  47 rejected Clarke's assumption aboriginal title existed 25821  Submissions by Mr. Rush        1 in British Columbia,  stating the following:  2  3 "Notwithstanding the great length of these  4 observations I feel it proper to make further  5 observations, seriatum, upon many of Mr.  6 Clarke's proposed sections which I have taken  7 the liberty of numbering in pencil.  S. 1: -  8 From this view I differ, in the case of  9 ordinary agricultural lands, as already  10 mentioned.  11 - I may also observe that the aboriginal title  12 is by no meanings extinguished.  Separate  13 provision must be made for it and soon: though  14 how this is to be done will require some  15 consideration.  From the friendly intercourse  16 with the natives however, no serious difficulty  17 is to be apprehended."  18  19 And I cite where that may be found, my lord.  20 Significantly, earlier in the same report, Douglas  21 acknowledged that he drafted the Proclamation of  22 January 4th, 1860.  That is, Judge Begbie acknowledged  23 that he drafted the proclamation, and he said:  24  25 "On the occasion of the drafting of the  26 proclamation of 4 January I wish to codify the  27 land system in many respects - to define what  28 should be considered town and suburban sites,  29 what are the definite situation of government  30 and Indian reserves."  31  32 Now by this, my lord, it is clear that Judge Begbie  33 drafted the land Proclamation of January 4, 1860,  34 applying to the mainland and when he did so, he  35 obviously had in mind that the aboriginal title on the  36 mainland was by no means extinguished.  Judge Begbie's  37 report upon Captain Clarke's proposals makes it clear  38 that, as a matter of law, he saw no inconsistency  39 between recognizing aboriginal title and the necessity  40 for its extinguishment.  And at the same time, the  41 making of a law defining what should be considered  42 part of the land system in this he was right.  Laws  43 providing for land system in the colony could be  44 established for the purpose of dealing with the land,  45 subject to the recognized aboriginal title and the  46 requirement for the Crown to extinguish it.  47 Most important, my lord, is that Newcastle wrote to 25822  Submissions by Mr. Rush 1            Douglas on December 6th,  1868 advising him of the  2 Queen's sanction of the Pre-Emption Act.  In this  3 Newcastle thanks Begbie for his report.  Newcastle's  4 acknowledgement, and the Queen's confirmation, must be  5 taken as concurrence of Begbie's opinion that  6 aboriginal title had not been extinguished on the  7 mainland.  Their actions were taken with the full  8 understanding that aboriginal title -- as a matter of  9 law -- was recognized and extant in the mainland  10 colony.  11 The 1860 Proclamation allowed for the acquisition  12 of unsurveyed Crown lands by pre-emption.  And the  13 province argues that because the Proclamation received  14 the Queen's "sanction" in December of 1860 that the  15 issue of its vires ceased to be constitutional  16 possibility.  17 Now, my lord, I am going to go into a response to  18 that particular argument and it might take somewhat  19 longer than the few minutes remaining before the  20 luncheon break.  I suggest this might be an  21 appropriate time to break off.  22 THE COURT:  All right.  You are running a little behind, Mr.  23 Rush.  24 MR. RUSH:  Yes, I am.  I will do my best to make up after lunch.  25 THE COURT:  All right.  2 o'clock.  26  2 7 (PROCEEDINGS ADJOURNED FOR LUNCH)  28  29  30  31  32  33 I hereby certify the foregoing to be  34 a true and accurate transcript of the  35 proceedings herein to the best of my  36 skill and ability.  37  38  39  40  41 Wilf Roy  42 Official Reporter  43  44  45  46  47 25823  Submission by Mr. Rush 1            (PROCEEDINGS RECONVENED AT  2:00 P.M.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Rush.  5 MR. RUSH:  My lord, I was at the bottom of 86 —  6 THE COURT:  Yes.  7 MR. RUSH:  -- directing your attention to the Province's  8 argument about the proclamation of January of 1860,  9 and the Province observes that the proclamation  10 received the Queen's sanction, as they call it, on  11 December 6th, 1860, and that the issue of its vires at  12 that point ceased to be a constitutional possibility.  13 If the proclamation of January 4, 1860, purported  14 to extinguish aboriginal title, which is a  15 construction which its language does not bear, we say,  16 any such attempt by Douglas to do so was beyond his  17 powers.  Further, if anything was attempted in  18 pursuance of the proclamation, it was ultra vires.  19 Now, Douglas' powers, my lord, were set out and  20 confined in his commission and instructions, and he  21 could not legislate beyond the powers conferred on  22 him.  And I rely on a passage from Sir Berridale Keith  23 in his Responsible Government in the Dominions, and  24 I've directed your lordship's attention to this.  And  25 I want to advise you that I've handed up a recent, new  26 and much thinner series 3 of authorities, and this  27 extract is taken from Volume Roman 22, tab 10.  28 I will just point out, my lord, that Mr. Berridale  29 Keith observes that:  30  31 "The Governor of a colony in ordinary cases  32 cannot be regarded as a viceroy.  Nor can it be  33 assumed that he possesses general sovereign  34 power.  His authority is derived from his  35 commission and limited to the powers thereby  36 expressly or impliedly entrusted to him."  37  38 And Sir Keith relies on Musgrave v. Pulido, which is  39 also in our series 3.  40 At the bottom of 87, the doctrine of invalidity on  41 grounds of repugnancy applies to the Imperial law in  42 the colonies.  There is no basis for an exception for  43 those colonial acts receiving express confirmation  44 from Britain.  They remain, for purposes of review,  45 colonial acts and subject to the overriding authority  46 of Imperial legislation directed at the colonies.  47 There is no good reason for suggesting that a 25824  Submission by Mr. Rush        1 confirmation in Britain  should operate so as to give  2 validity to a colonial enactment which is void by  3 reason by repugnancy to an Imperial statute, a  4 prerogative legislative enactment or the common law of  5 the same effect applying to the colonies.  6 Keith comments that the doctrine of confirmation  7 "would not be accepted by Courts at the first time --  8 THE COURT:  Present time.  9 MR. RUSH:  -- would not be accepted by the Courts at the present  10 time as validating a measure per se illegal."  This  11 accords with a 1737 opinion of the Crown Law Officers  12 holding that an act of colonial assembly, even if  13 confirmed by the Crown, would not create a monopoly on  14 trade with the Indians inhabiting the colony.  And  15 there, my lord, I refer you to a footnote in Dr.  16 Slattery's work, the opinion of Ryder, Attorney-  17 General Ryder, and Strange dated July 28, 1737.  18 In Naden the Privy Council in relation to a  19 section of the Criminal Code of Canada purporting to  20 annul the Royal Prerogative to grant special leave  21 held the section invalid as being inconsistent with  22 the Imperial Judicial Committee Acts and, therefore,  23 invalid under Section 2 of the Colonial Laws Validity  24 Act, 1865.  25 Now, my lord, we say that confirmation is given to  26 legislation on its face.  Where such legislation does  27 not contain express words indicative of an intention  28 to extinguish, wholesale, aboriginal property rights  29 throughout a colony, the Queen cannot be taken to have  30 confirmed this.  It's a rule of statutory construction  31 that a statute should not be deemed to extinguish or  32 take away a right of property without compensation  33 unless it appears by express words or plain  34 implication that it was the intention of the  35 legislature to do so.  We cite Western Countries Rail.  36 Given that the Imperial confirmation does not alter  37 the authority of colonial legislation, confirmed  38 colonial laws are subject to the same limits as those  39 which were not confirmed.  40 Insofar as the proclamation of January 4, 1860  41 goes and, for that matter, land legislation in the  42 Colony of British Columbia purporting to or at least  43 said to extinguish aboriginal title, it was ultra  44 vires the terms of the constitution of the colony,  45 firstly, as being inconsistent with instructions  46 issued to the governor; and secondly, inconsistent  47 with Part IV of the Royal Proclamation of 1763, which 25825  Submission by Mr. Rush        1 formed part of the  constitution of the mainland.  2 THE COURT:  I'm sorry, when you say formed part of the  3 constitution of the mainland, is there a specific  4 reference or is that --  5 MR. RUSH:  This is to the argument that we made that the Royal  6 Prerogative is a prerogative legislative enactment.  7 THE COURT:  There's no specific mention of it, I think.  8 MR. RUSH:  No, no, save that the —  9 THE COURT:  You said by implication.  10 MR. RUSH:  Well, save for the fact, my lord, that there was a  11 reference that there could -- that no law could be  12 repugnant to a prerogative instrument that I believe  13 was held, if my memory serves me correctly, in the  14 commission of Governor Douglas.  15 THE COURT:  Yes.  16 MR. RUSH:  Now, my lord, I'm moving to the historical train of  17 events now, and I'm directing your lordship's  18 attention to October 9, 1860, and October 25th, 1860,  19 and Douglas reported to Newcastle at this time on a  20 journey which he had taken through part of southern  21 British Columbia.  And the Province makes much of this  22 journey.  And here what I've done, my lord, on page 90  23 is to set out the general reportage of this journey  24 made by Governor Douglas.  25 On 91 what I do is I summarize our view of these  26 despatches.  In these despatches Douglas indicates,  27 firstly, the route through which he was travelling was  28 "exclusively occupied by the native Indian tribes."  29 Those are his words.  30 Secondly, Douglas was not making, we say, a  31 general policy statement to be applicable throughout  32 the colony.  If he were, why would he choose Rock  33 Creek to make it?  He was clearly responding to local  34 concerns and demands.  His was a political expression  35 to answer local expedience.  36 Douglas does not report in these two despatches  37 that the native people to whom he talked were making  38 any particular demands of him in respect of their land  39 but rather sought assurances regarding the forced  40 removal of native people from their native homes into  41 distant reserves, something that they were aware about  42 in southern Oregon.  43 THE COURT:  Where do you understand Rock Creek is?  I know a  44 Rock Creek that's east of Osoyoos.  45 MR. RUSH:  This would be not east of Osoyoos, my lord.  This  46 would be between Lytton and Cayoosh.  47 THE COURT:  Oh, in there.  All right.  Cayoosh then being 25826  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submission by Mr. Rush        1 Lillooet.  MR. RUSH:  Yes.  MR. GOLDIE:  I think it's after he was at Lytton, my lord.  He  went from Lillooet to Lytton and then to Rock Creek, I  believe.  MR. RUSH:  It is after Lytton.  THE COURT:  Between Lytton and —  MR. RUSH:  And Lillooet it must be.  MR. GOLDIE:  No.  THE COURT:  Mr. Goldie says no.  Where do you think it is, Mr.  Goldie?  MR. GOLDIE:  I think it's pretty close to the place you're  talking about, my lord, because that's where he was  going to, Fort Colville, which is just downstream, so  to speak, of Rock Creek.  THE COURT:  Yes.  The Rock Creek I knew as a boy is on the old  Kettle Valley Railway.  MR. GOLDIE:  Yes.  THE COURT:  Well, it's between Osoyoos and Midway.  MR. GOLDIE:  Midway.  It's very close to the border.  THE COURT:  All right.  Well, we have an issue, a geographic  issue here.  My lord, my reading of the document doesn't place  Douglas anywhere near that far east.  It's a long way to go if he was only gone from the  9th to the 25th.  That's right.  And also he's reporting on meeting  with Indian peoples in the Fraser Valley, and he's not  reporting on meeting --  Lower canyon.  The lower canyon, that's right.  Yes.  All right.  Well, it will be a fascinating  endeavour to find out where he was.  My lord, at the bottom of 91, Douglas expressed a  version of his plan to establish reserves including  inter alia as much land as they required for their  support.  At no time in his reports did he disavow  aboriginal title to the land.  In fact, on a reading  of it I say he impliedly accepts it.  And at no time did he reject in the course of  these reports Lytton's instructions to bargain or  treat with the native people.  The expressions by Douglas here to establish  reserves for the native people in the southern part of  British Columbia and later the establishment of  reserves must be seen against the backdrop of the preexisting aboriginal title of the native people to  MR. RUSH:  THE COURT:  MR. RUSH:  THE COURT  MR. RUSH:  THE COURT  MR. RUSH: 25827  Submission by Mr. Rush 1            their lands.  Reserves  established to deal with  2 the question of white settlement and Indian ownership  3 of aboriginal lands on the ground.  There were a  4 number of non-Indian people in the interior.  5 Co-existence was seen where there was no ready  6 conflict.  The establishment of reserves did not  7 negate the aboriginal title to the land.  8 Now, my lord, I'm moving to 1861 and  9 communications from the Vancouver Island House of  10 Assembly and the responses of Douglas and of the  11 Emigration Office in Britain.  And we say that these  12 show that the British Crown continued to recognize  13 aboriginal title and the need to purchase such title  14 before the land could be offered by the Crown to  15 settlers.  16 In 1861 the Duke of Newcastle, who by then had  17 replaced Lytton as Secretary of State -- in a letter  18 of transmittal to the Duke of Newcastle, and I'm a  19 little farther down here, my lord, Douglas noted that  20 the natives expected that settlement would proceed  21 only with their consent and that failure to make  22 proper arrangements might result in a clear and  23 imminent public danger.  24 And I draw your lordship's attention to the first  25 paragraph, and I'll specifically read from the second.  2 6 Number 3:  27  28 "Knowing their feelings on that subject, I made  29 it a practice up to the year 1859..."  30  31 "(after B.C. established" is my note.  32 THE COURT:  That's yours.  33 MR. RUSH:  That's my note.  34 THE COURT:  That's Mr. Rush's note.  All right.  35 MR. RUSH:  36  37 " purchase the native rights in the land in  38 every case prior to the settlement of any  39 district; but since that time in consequence of  40 the termination of the Hudson's Bay Company's  41 Charter and the want of funds, it has not been  42 in my power to continue it."  43  44 And then he carries on, my lord.  45 And over on 94, in item number 7, he says, and I  4 6 quote:  47 25828  Submission by Mr. Rush 1                  "...but the  difficulty may be surmounted by  2 means of an advance from the Imperial  3 Government to the extent of 3,000 pounds, to be  4 eventually repaid out of the Colonial Land  5 Fund."  6  7 So this was a matter of attempting to deal with the  8 purchase of title by a proposal he made of an advance  9 of monies from the Imperial Government.  10 Now, Mr. Justice Hall in Calder considered this  11 despatch, and he said at the bottom of 94 of my  12 argument:  13  14 "...The limitation on the right of an aborigine  15 to hold land in fee simple has no bearing  16 whatsoever on the right of the aborigine to  17 remain in possession of the land which has been  18 in the possession of his people since time  19 immemorial.  Governor Douglas knew that he had  20 no right to take Indian lands without some form  21 of compensation.  He understood instructions in  22 that regard.  This is clear from paragraphs of  23 his letter to the Colonial Secretary dated  24 March 25, 1861."  25  26 My lord, on 95 the question really turned to the  27 issue of financing, and the request for aid in  28 financing purchase of aboriginal title was reviewed by  29 the Emigration Office in London.  Every one of the  30 written minutes concerning this matter expressed  31 concurrence with Douglas and the House of Assembly in  32 Victoria regarding the need to purchase aboriginal  33 title.  Further, it is clear that the need to purchase  34 the aboriginal title was seen as necessary not only in  35 the Colony of Vancouver Island, but in the mainland  36 colony of British Columbia.  The following minute of  37 the colonial office illustrates the point, and I think  38 it's an important point, my lord, because the issue  39 arises out of the desire of Governor Douglas to deal  40 with the purchase of aboriginal title on Vancouver  41 Island, but the response from the colonial office is  42 in respect of the mainland and the Vancouver Island.  43 And Mr. Elliot says in this minute:  44  45 "The early settlement of this matter is of much  46 importance.  I frequently am called upon to see  47 at this office persons of all classes, desirous 25829  Submission by Mr. Rush        1 of settling in  Vancouver Island or British  2 Columbia, and one of the questions proposed to  3 me is generally how the claims of the natives  4 to land were arranged; to which I have had to  5 answer that I concluded they would have to be  6 brought up."  7  8 MR. GOLDIE:  Bought up.  9 MR. RUSH:  10  11 "...bought up.  But this has not been quite  12 satisfactory to an enquiring settler, who,  13 before he leaves these shores naturally desires  14 to know exactly & positively what he may expect  15 in the acquisition of land in the Colony he has  16 selected as his residence.  Therefore if these  17 Indian claims could be fairly extinguished the  18 arrangement would facilitate immigration."  19  20 And he's there, my lord, talking about immigration to  21 the mainland and to the island.  22 Now, my lord, the transmittal letter from  23 Helmcken, speaker of the house, to Governor Douglas  24 refers to the petition "Praying for the extinction of  25 aboriginal title" passed by the House of Assembly.  26 And the petition sent to the colonial office provided,  27 and I've set that out, and I just direct your  28 lordship's attention to paragraph number 1:  29  30 "...That many colonists have purchased land at  31 the rate of one pound sterling per acre in  32 districts to which aboriginal title has not yet  33 been extinguished."  34  35 THE COURT:  That's out of order, isn't it?  This is February  36 6th, 1861.  Those other documents were the 25th of  37 March, 1861.  38 MR. RUSH:  These are responsive documents, my lord, but I'm  39 drawing now your attention to the document that was  40 sent to them to be responded to.  And it's the -- this  41 is the petition that Mr. Elliot commented upon.  42 THE COURT:  Oh, I see.  Yes.  All right.  43 MR. RUSH:  The disagreement between London and Victoria  44 concerned which government should finance the payments  45 to the Indians.  The government in England declined to  46 place this burden upon the British taxpayer, claiming  47 that the local government should raise the revenue. 25830  Submission by Mr. Rush        1 The local government  claimed that it could not do so.  2 The House of Assembly alleged that fiscal  3 responsibility for extinguishing native title to  4 public lands in the colony rested with the home  5 government.  Douglas, however, promised that the funds  6 would be a loan to be repaid out of colonial land  7 revenues when settlers were able to pay for the land.  8 He clearly contemplated that title to lands not  9 reserved to Indians would be purchased with their  10 consent as settlement proceeded.  11 Now, the Emigration Office in Britain was  12 concerned that every colony could make a similar claim  13 on the home government for assistance in extinguishing  14 native title.  There was also concern that a loan from  15 the treasury or the money market could only be made at  16 disadvantageous rates at that time.  There was  17 concurrence that eventually the loan would have to be  18 repaid by the colony, but there was little information  19 available regarding the status and future of land  20 revenues in the colony.  21 Now, part of the correspondence that was generated  22 by the Newcastle petition was a letter from a Mr.  23 Murdoch, one of the land and immigration commissioners  24 in London, to Sir Frederick Rogers.  This acknowledges  25 the despatch from the governor of Vancouver Island and  26 the petition on the subject of the extinction of the  27 native title to lands in the colony.  And I refer you,  28 my lord, to the first few lines.  He says:  29  30 "The Assembly represents that nearly three years  31 ago many colonists purchased land over which  32 the native title had not yet been extinguished,  33 at the rate of one pound per acre."  34  35 And I take you over to the next page, and he  36 points out that:  37  38 "...the existence of native title has deterred  39 many persons from settling on the Island."  40  41 And then Murdoch went on to say:  42  43 "The only question is the source from which the  44 money should in the first instance be  45 obtained."  46  47 And then he goes into a consideration of whether it 25831  Submission by Mr. Rush        1 should be a loan or  whatever.  2 And then I take you to the bottom of page 98, my  3 lord.  The unanimous opinion at the Emigration Office  4 that the aboriginal title had to be purchased resulted  5 in an appeal to the treasury for fiscal assistance.  6 This, however, was turned down because of the  7 assertion of the Victoria Legislature that the home  8 government was liable for the cost of extinguishing  9 aboriginal title.  10 And then I point to the fact, my lord, that there  11 was correspondence between the second commissioner of  12 the Emigration Office and Sir Frederick Rogers, who  13 was then permanent Under-Secretary of State for the  14 colonies, October 4th, 1861, and this makes it clear  15 that the failure to acquire funds from the treasury  16 was in no way a repudiation of British policy that  17 aboriginal title had to be purchased, but rather an  18 assertion that the colony was liable for the costs.  19 And I direct your attention to paragraph 2, my  20 lord, the bolded section.  21  22 "The circumstances of the case and the  23 importance and practical economy of  24 extinguishing the aboriginal title on the lands  25 in question as early as possible, are fully set  26 forth in Mr. Murdoch's report,"  27  28 the one I just referred you to a moment ago.  29 And then I direct your attention, my lord, to  30 paragraph 3 at the bottom.  31  32 "Their Lordships moreover consider that the  33 Governor's best course would be to follow his  34 previous practice of purchasing the native  35 rights over such land only as was immediately  36 required for settlement, and not on so large a  37 scale at once as to require that a loan should  38 be raised for the purpose."  39  40 And then I ask your lordship to look at paragraph  41 4, the bolded part -- or the underlined part.  42  43 "The result will be that the opportunity will be  44 lost of extinguishing the Native Title on very  45 moderate terms, and that faith cannot be kept  46 with the persons to whom the Government sold  47 the land 3 years ago without endangering the 25832  Submission by Mr. Rush        1 peace of the  country."  2  3 Now, my lord, at the bottom of the page, in the  4 fall session of 1861 the Vancouver Island House of  5 Assembly reopened discussion on the need to purchase  6 aboriginal title to land.  No response had been  7 received to the petition for funds to extinguish  8 aboriginal title which had been sent to England in  9 March.  10 Newcastle's response to the March petition is  11 dated October 18th, 1861, and he wrote to Douglas  12 concurring in the need to extinguish native title, but  13 directed that the House of Assembly would have to vote  14 funds for the purpose.  And I direct your attention to  15 the first few lines of the insert and then the first  16 few lines of the second paragraph of Newcastle's  17 despatch, where he says:  18  19 "I am fully sensible of the great importance of  20 purchasing without loss of time the native  21 title to the soil of Vancouver Island..."  22  23 Now, my lord, what I say this series of  24 correspondence indicates is the following on 102.  25 First, it was James Douglas' practice to purchase the  26 lands belonging to the Indians on Vancouver Island  27 "with the full consent of the proprietary tribes."  In  28 this he acknowledged Indian title to their lands.  29 That this practice lasted until 1859, when the colony  30 ran out of money, as he says, "to defray the most  31 indispensable wants of Government."  This "practice"  32 was in accord with the subsisting law, namely, that  33 Indian title to their lands had to be purchased with  34 consent, by treaty, and that the sale of Indian land  35 could only be made to the Crown.  Now, this practice  36 and, I say, the law underpinning it was recognized to  37 be applicable not only to the Colony of Vancouver  38 Island but also to the mainland, and that was  39 recognized by the officers in the colonial office in  40 Great Britain.  41 No one in the colony, my lord -- and I'm at number  42 5 here.  No one in the colony, not Douglas nor  43 Helmcken, and no one in the colonial office in London  44 drew any distinction between the Colony of Vancouver's  45 Island and the mainland colony.  There was no  46 perceived difference between the two colonies as to  47 the recognition of title and the requirement to 25833  Submission by Mr. Rush        1 extinguish that title  through purchase.  The sole  2 issue was who should pay.  3 A stalemate resulted on the question.  And this  4 did not mean, however, that the obligation to purchase  5 native title to the soil was no longer required or  6 that the law had altered.  If the colonial office did  7 not recognize aboriginal title in the mainland colony,  8 or at all, Newcastle could have said so.  He said  9 nothing which would even suggest that the Crown did  10 not recognize Indian title as existing in the  11 colonies.  12 As a matter of law, the Crown recognized Indian  13 title and the need to extinguish it by purchase and  14 with consent, and we say this is plain in the  15 correspondence.  As a matter of practice, the colony  16 could not discharge its obligations, though  17 recognizing it had to.  The reserve-making practice  18 which emerged was not a substitute for extinguishing  19 title but an expedient in the face of continued  20 settlement pressure to do so, a feature of the  21 colonial policy going back to the Douglas treaties.  22 My lord, this correspondence does not suggest that  23 the colonial laws or the conduct of the colony in  24 setting up reserves extinguished the pre-existing  25 title of the Indians.  If they thought that they were  26 extinguishing title, one would have thought they would  27 have said so.  As the address from the House of  28 Assembly showed, settlement was allowed to proceed  29 before the Indians were paid for their land, and that  30 was the same on the mainland.  31 Now, moving to 1862, my lord, the government in  32 Victoria thus was faced with a dilemma.  It was to  33 carry out Imperial obligations to recognize aboriginal  34 title and to purchase land from the Indians with their  35 consent.  At the same time the Victoria government  36 lacked the funds to carry this out, or rather, did not  37 control revenues from the sale of lands.  By March of  38 1862 Indian patience was wearing thin and action had  39 to be taken to extinguish title in areas of the Island  40 where settlement was progressing.  The governor  41 addressed the legislative bodies on the subject.  And  42 I there, my lord, set out the address which is  43 reported in the Victoria Colonist.  44 Now, there were articles in the local press which  45 called for the extinguishment of aboriginal title, and  46 the article in the British Colonist on March 21st,  47 1862, entitled "Indian Title" followed on the receipt 25834  Submission by Mr. Rush        1 of the answer to the Duke  from the Duke of  2 Newcastle.  And, my lord, I make reference to that and  3 the subject of the consideration to be paid for the  4 extinction of the Cowichan titles.  5 Now, in the last paragraph of 105, the newspaper  6 extracts to which I have made reference explain the  7 problem that the government faced.  The government of  8 the colony had planned to raise the money for paying  9 for the extinguishment of native title in the Cowichan  10 Valley by taking it out of the installment payments  11 that the land purchasers in that area would pay to the  12 government for the land.  It developed that the people  13 who were intending to settle there as farmers did not  14 have cash and were paying up part of their  15 installments by working on the roads.  They weren't  16 going to be able to raise the money to pay the Indians  17 because the installments were coming in as labour.  18 And this was the dilemma which the colony faced.  19 The March 1862 estimates included 2,000 pounds for  20 the extinction of aboriginal title.  The House did not  21 have control of the public lands, and members did not  22 want to vote funds until land revenues were under  23 their control.  And that's apparent in the report of  24 the British Colonist of March 31st, 1862, and I'll  25 just direct your lordship's attention to the opening  26 lines.  27  28 "Mr. Helmcken said it was perfectly absurd for  29 the House to vote money towards the extinguish-  30 ment of the aboriginal titles when it had no  31 control of the land fund..."  32  33 And then the observations of Mr. Ring and Mr. Harris  34 and so on are reported, and I've underscored those for  35 your lordship's attention.  36 Over on to 107, my lord.  We draw your lordship's  37 attention to the fact that public notices were printed  38 in the newspapers which advised that monies to pay for  39 the extinguishment of aboriginal title would be taken  40 from the payments made by settlers in certain  41 districts, and that's evident by, again, the  42 underlined portions of the notice which appeared in  43 the British Colonist.  And, my lord, while this is  44 dated December 9th, 1861, there were, in fact, similar  45 ads that ran in papers throughout the period.  46 Now, the House of Assembly voted funds to pay for  47 Indian lands in 1863, and according to newspaper 25835  Submission by Mr. Rush        1 accounts, the amount of  over $9,000 was voted by the  2 House of Assembly to defray costs of extinguishing  3 aboriginal title in the Cowichan and Chemainus  4 districts in 1863.  Pressure was mounting in terms of  5 settlement, and there were also certain hostilities  6 between Indians and non-Indians.  7 A series of editorials in the British Columbian,  8 which was a New Westminster newspaper circulating on  9 the mainland, and the British Colonist and Victoria  10 Daily Chronicle linked the hostile feelings of Indians  11 towards whites with the government's failure to pay  12 the Indians for their lands.  13 And what I've done on 109 over to 110, my lord, is  14 to set out the extracts from the various newspapers.  15 And then on to 110.  What we conclude from this,  16 my lord, is that three of the most important  17 newspapers of the day on the Island and on the  18 mainland carried numerous articles and editorials  19 decrying the failure of the government to treat with  20 the Indians for the extinguishment of native title.  21 Public opinion, then as now, was divided on the issue,  22 but there is no question that a large constituency in  23 the colonies recognized the existence of aboriginal  24 title and an obligation to compensate the Indians for  25 lands which they claimed.  The action of the House of  26 Assembly in voting funds for this purpose was  27 supported by a vocal segment of the community on both  28 the Island and the mainland.  The actions of voting  29 funds as well as the general reporting that the  30 Indians had been promised compensation document the  31 continuing recognition of native title.  32 Now, on 111, my lord, in further support of our  33 proposition of recognizing -- colonial recognition of  34 aboriginal title, I draw your lordship's attention to  35 a letter from the surveyor-general of the colony, Mr.  36 Pemberton, to William Young, and I direct you to the  37 underscored portion.  38 Now, at the bottom of 111, both the House of  39 Assembly and the Legislative Council of Vancouver  40 Island recognized the need to extinguish title as an  41 ongoing government obligation which would continue in  42 future years.  This is made explicit in their  43 responses to a proposition for union of the Colony of  44 Vancouver Island and the Colony of British Columbia  45 and of control of Crown revenue in return for a  46 permanent civil list.  The following extract is taken  47 from an address of the Legislative Assembly 25836  Submission by Mr. Rush        1 transmitted through the  speaker, J.S. Helmcken, and  2 it's dated February 9, 1864.  My lord, the part I'd  3 like to direct your attention to is bolded in the  4 fourth paragraph.  5  6 "...there is reason to believe that the Revenue  7 from this source will in future years be less:  8 whilst a considerable sum will be requisite for  9 the extinction of the aboriginal title..."  10  11 This was made in the context of knowledge -- or rather  12 of the proposal for the union of the two colonies.  13 On 113, my lord, I draw your attention to the  14 speech of the president of the Legislative Council of  15 May 3rd, 1864.  And the Legislative Council resolved  16 to concur in the general tenor of the resolutions, and  17 one of the reasons adduced was cited in this despatch.  18  19 "Because the amount of money necessary to be  20 paid to Indians to extinguish the aboriginal  21 title to portions of the Land will absorb a  22 considerable sum of the proceeds of the Sales  23 thereof."  24  25 Now, my lord, the colonial government recognition  26 of the need to extinguish title is clearly documented  27 not only in the official records of the Legislative  28 Council, House of Assembly, and the Crown Lands  29 Committee, but also in the correspondence of the Lands  30 and Works Department in 1864.  And I draw your  31 lordship's attention to a letter from J.D. Pemberton  32 of the Lands and Works Department penned to the  33 colonial secretary recommending a source of funds for  34 the extinguishment of aboriginal title in the district  35 dated 8 August 1864.  36 Now, the situation with regard to the non-  37 extinguishment of native title in the Cowichan  38 district had been festering for several years.  39 Settlers were unwilling to remain on their claims  40 because the Indians had become restive over the delay  41 in having the aboriginal title purchased.  The  42 following petition by landowners gives a sense of the  43 unsatisfactory state of affairs, a fact which was  44 regularly aired in both the mainland and Island press  45 between 1860 and 1864.  And, my lord, I direct you to  46 the last paragraph on 115 as evidence of the  47 dissatisfaction voiced by these petitioners.  I 25837  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. RUSH:  THE COURT  MR. RUSH:  Submission by Mr. Rush        1 also --  THE COURT:  You don't have a date for this.  I noticed that, my lord, and I will -- yes.  I cite a  further petition on page 117.  I believe it was in  1864, but I'm not certain of that, and I will  endeavour to check that exhibit for you.  Okay.  This is a petition, is it?  Yes, that's a petition from the landowners of the  District of Cowichan.  I should point out to your  lordship that, as I do on page 117, that this wasn't  the first time that the petitioners submitted a  petition, and I set out another petition of May the  10th, 1863.  Now, my lord, on January 29, 1864, Douglas was  still governor of the colony, and as governor he  addressed the first session of the first Legislative  Council in British Columbia.  GOLDIE:  That's the mainland colony you're referring to, is  it?  RUSH:  Yes.  GOLDIE:  Yes.  RUSH:  It says that in the next sentence.  He opened the  mainland Legislative Council.  GOLDIE:  Excuse me.  I don't like to interrupt my friend,  but I want to be clear that he's making a distinction  between Douglas whom he's been speaking about and to  whom these petitions were addressed, who is the  governor of Vancouver Island, and when my friend says  Douglas was still governor, I want to be clear that  he's referring to still governor of the mainland.  THE COURT:  Did he not leave both positions at the same time?  MR. GOLDIE:  The petitions were addressed to him in his capacity  as governor of Vancouver Island.  THE COURT:  The ones just mentioned, yes.  Yes.  All right.  He was governor of both at this time, my lord.  All right.  He opened the first mainland Legislative Council, and  this was reported in the British Colonist, which in  turn had taken their article from the British  Columbian, a mainland newspaper published in New  Westminster.  And at the opening of this council  Governor Douglas said, and I set out his comments, and  what he says, my lord, on the top of 118 is that the  lands themselves -- excuse me --  MR.  MR.  MR.  MR.  MR.  MR. GOLDIE  THE COURT:  MR. RUSH:  THE COURT:  MR. RUSH: 25838  Submission by Mr. Rush        1 "The Indians  themselves have no power to sell or  2 alienate these lands, as the title will  3 continue in the Crown and be hereafter conveyed  4 to trustees, and by that means secure to the  5 several tribes as a perpetual possession.  That  6 measure is not, however, intended to interfere  7 with the private rights of individuals of the  8 native tribes or to incapacitate them, as such,  9 from holding land."  10  11 Now, in this address, my lord, Douglas makes it  12 clear that the "plan of forming reserves of land" was  13 "to secur[e] them against encroachment of settlers."  14 He says that the Indians "have no power to sell or  15 alienate these lands, as the title will continue in  16 the Crown..."  Douglas does not say that the reserves  17 were intended as an extinguishment of Indian title.  18 He does not say that there was no title and that the  19 reservation of land was a function of the governor's  20 grace.  In fact, he suggests the contrary by saying  21 that the Indians have no power to alienate, a  22 provision which could only be in recognition of the  23 common law requirement that native people were  24 prohibited from selling land directly to third  25 parties.  26 Now, Crease's comments are set out next, my lord,  27 and I move to the middle paragraph.  Douglas retired  28 in 1864 and Arthur Kennedy was appointed governor of  29 Vancouver Island, and Governor Kennedy made a formal  30 address to assembled Indians in Victoria, and his  31 address is there set out.  32 Now, my lord, I take you over to 120, and this  33 deals with aboriginal title, mainland colony, 1865.  34 Concerns about the need to extinguish aboriginal title  35 by agreement with the Indians, payment of compensation  36 to them for their lands, and reservation of lands for  37 their exclusive use were a continuing concern in the  38 mainland colony as well as in Vancouver Island.  39 Settlement was being retarded on the mainland because  40 arrangements had not been made with the Indians  41 regarding their lands.  42 Philip Nind, a member of the Legislative Council  43 in 1863 and magistrate, wrote to the colonial  44 secretary in 1865 urging that the government  45 extinguish Indian land claims above Kamloops and in  46 its vicinity.  And the passage I direct you to in  47 particular is on 121, and it begins with the bolding, 25839  Submission by Mr. Rush        1 my lord.  2  3 "...I believe the only method of settling this  4 matter satisfactorily and with equity to both  5 Indians and whites will be for the Government  6 to extinguish the Indian claims, paying them  7 what is proper for so doing, and giving them  8 certain reservations for their sole use."  9  10 The above statement, made in 1865, is consistent  11 with long-settled British principles that aboriginal  12 title should be extinguished by purchase from the  13 natives, with their consent, and that some part of  14 their land should be secured to them for their  15 exclusive use.  There is no suggestion in Nind's  16 report of an understanding that the establishment of  17 reserves would do away with the requirement to  18 extinguish aboriginal title nor that it would obviate  19 the need to compensate the Indians for surrender of  20 lands.  21 Now, moving to the united colony, 1867 and 1868,  22 in 1867, my lord, after union of the two colonies, the  23 legislature was still debating the issue of how to  24 extinguish aboriginal title.  The failure to do so was  25 recognized as an impediment to settlement and a cause  26 of conflict between Indians and settlers, but the  27 costs of making general surveys prior to settlement  28 were seen as an obstacle to resolve the issue.  In  29 February 1867 the Legislative Council discussed the  30 need to survey the Indian reserves of the colony in  31 order to avoid conflicts between settlers and Indians  32 and the outstanding problem of the unextinguished  33 aboriginal title.  The discussion was precipitated by  34 a motion brought by Mr. Robson, who was seeking  35 reduction in the size of the Indian reserves in the  36 lower Fraser River area.  37 And, my lord, I draw your attention to the fact  38 that the report indicates Trutch's presence during  39 this debate.  And the second to last paragraph  40 indicates that the Honourable Crease opposed the  41 motion as the question was fraught with difficulty and  42 danger.  What is attributed to him is this.  43  44 "The Indians were particularly sensitive of  45 their rights as original possessors of the soil  46 and were entitled to the greatest  47 consideration.  The honourable gentleman had 25840  Submission by Mr. Rush 1                   not made out a case  and it was unwise to press  2 it on the Government."  3  4 And then the British Colonist further reported of  5 this debate at the bolded paragraph on 123.  6  7 "(The) Honourable Wood showed the difficulties  8 that stood in the way of the settlement of the  9 aboriginal title to lands, and the critical eye  10 with which any acquisition of title would be  11 watched at home and in the Colony."  12  13 Now, my lord, none of the discussion involved a  14 denial of aboriginal title or a denial of the need to  15 deal with aboriginal title.  Crease had been appointed  16 Attorney-General of the mainland of British Columbia  17 in 1861 and continued in the post until union with  18 Vancouver Island, when he became Attorney-General of  19 the united colony.  He reminded the council of the  20 rights of the Indians as original possessors of the  21 soil.  Southgate raised the issue of compensating the  22 Indians for extinguishing title, and Wood noted that  23 the manner in which aboriginal title was acquired  24 would be watched in England as well as in the colony.  25 Now, my lord, Trutch, who participated in the  26 discussion later in 1870, denied that government had  27 ever recognized aboriginal title.  28 Now, moving to the next full paragraph, my lord,  29 Joseph Trutch had been appointed Chief Commissioner of  30 Lands and Works in 1864, and he radically altered  31 Indian reserve policy at the local level following  32 Douglas' retirement.  Trutch was hostile to any idea  33 of Indian rights in land and assiduously worked to  34 reduce the size of the Indian reserves which had been  35 established during the Douglas regime.  In a  36 memorandum written in August 1867 to the acting  37 colonial secretary in Victoria, Trutch stated his view  38 that the Indian reserves which had been set out along  39 the lower Fraser by McColl during Douglas' tenure were  40 too extensive, and Trutch recommended that the  41 reserves should be reduced in size.  And I've set out  42 the passages there, and I direct your attention to the  43 second paragraph, my lord, on page 125.  44 Enclosed in that report was Mr. William McColl's  45 own report of May 16, 1864, where he was -- he is  46 reported to have been instructed by Douglas that the  47 Indians were to have as much land as they wished and 25841  Submission by Mr. Rush        1 in no case to lay off a  reserve under a hundred acres.  2 Now, my lord, moving to the middle paragraph or at  3 least to the paragraph at the bottom of the page,  4 dissatisfaction at Cowichan continued because no  5 action had been taken to pay the Indians for their  6 lands.  A long letter to the editor of the British  7 Colonist made a number of recommendations for  8 government action in Indian affairs and drew attention  9 to the festering situation at Cowichan, and that's set  10 out.  11 On 127, in 1869 a controversy developed over  12 leasing of land on the Songhees Reserve in Victoria.  13 Trutch, as Commissioner of Lands and Works, prepared a  14 report on the history of the Victoria Indian Reserve.  15 And in this report he noted the following, and it's of  16 some significance, I think, my lord.  He said:  17  18 "It is certain that the tract of land known as  19 the Songish Indian Reserve, was formally set  20 apart by the competent authority of the  21 Hudson's Bay Company's Agent, acting on behalf  22 of the Crown,"  23  24 at least Mr. Trutch concedes that they were acting on  25 behalf of the Crown,  26  27 "for the perpetual use and benefit of the  28 Indians of that tribe; and that land is now  29 held in trust by the Crown, acting under a  30 solemn obligation, as guardian of the rights of  31 the Indians in this respect."  32  33 And then he goes on to consider the making of the  34 treaty.  35  36 "When the first settlement was made at Victoria  37 by the Hudson's Bay Company, the Songish  38 Indians, composed of many families or septs,  39 possessed by occupation the whole south-eastern  40 portion of Vancouver Island...and in 1850 the  41 possessory rights of the various families of  42 this tribe in the lands claimed by them, were  43 purchased by Sir James (then Mr.) Douglas,  44 Governor of the Hudson's Bay  45 written agreement..."  46  47 So, my lord, in December the 30th, 1869, Trutch 25842  Submission by Mr. Rush        1 officially reported that  the Douglas treaties were for  2 the purpose of purchasing possessory rights of the  3 Indians and that the Indians possessed their rights by  4 occupation.  He further stated that Douglas acted as  5 agent for the Crown in negotiating the treaties.  Two  6 weeks later he characterized the nature and purpose of  7 the treaties rather differently.  In fact, in direct  8 contradiction of the plain language of the agreements,  9 and his own reporting of them, Trutch styled the  10 payments made to the Songhees and other Indians as  11 presents made for the purpose of securing their  12 friendly relations.  13 THE COURT:  You don't have a date for that.  It's two weeks  14 after.  15 MR. RUSH:  Yes.  I'm coming to that, my lord.  16 THE COURT:  After December 30th, I guess.  17 MR. RUSH:  Yes.  18 THE COURT:  All right.  19 MR. RUSH:  I'll be coming to that.  In January of 1870.  20 MR. GOLDIE:  Oh.  That's the reference, is it?  21 THE COURT:  Yes.  22 MR. RUSH:  The Province argues that the reserve-making policy  23 initiated by Douglas in the mainland colony became the  24 only policy of the united colony.  The assumption  25 behind this is that there was only one policy in  26 relation to Indians, which was not true, and that the  27 policy was intended only to be carried out in the  28 mainland, which was not true.  This state of affairs  29 before and after union of the colonies in 1866 may be  30 summarized in this way.  The law applicable to both  31 Vancouver Island and British Columbia was the same.  32 The Crown recognized Indian title to aboriginal lands;  33 it required that the title to the land be  34 extinguished, with consent, by purchase and that the  35 Indian interest in the land was inalienable except to  3 6 the Crown.  37 The policy implemented by Douglas on Vancouver  38 Island was to make treaty with the Indians in  39 conformity with the fundamental principles set out in  40 #1.  Although he never expressed himself in those  41 words, his conduct in establishing the treaties on  42 Vancouver Island and continuing a practice (and  43 pressing) for the extinguishment of recognized title  44 of Indian land was in accord with what the principles  45 and law affecting the treatment of Indians was.  46 At no time was treaty-making considered restricted  47 to Vancouver Island, as the documents referred to 25843  Submission by Mr. Rush        1 above show.  2 A plan of making reserve allocations of land  3 "occupied" by the Indians was implemented to deal with  4 the conflicts between settlement and Indian possession  5 of land, and this was part of the existing policy of  6 the colonies to recognize title.  7 Reserve-making grew out of the financial inability  8 of both colonies to purchase Indian title.  The  9 extinguishment of aboriginal title was deferred.  10 At no time was it intended, nor did anyone say  11 (until Trutch in 1870) that Indian title to lands on  12 Vancouver Island and the mainland did not exist.  13 Upon union of the colonies there was one policy in  14 place.  The policy was to extinguish aboriginal title  15 in addition to making reserves as settlement  16 proceeded.  Reserves would be established until title  17 could be extinguished.  18 The united colonies could not take action or pass  19 laws that were repugnant to British law and the Royal  20 Proclamation.  Douglas was constrained by his  21 commission and instructions.  Proclamations or  22 ordinances passed in the two colonies and steps taken  23 as a matter of practice in those colonies were invalid  24 to the extent that they were repugnant to or  25 inconsistent with the requirement to recognize  26 aboriginal title of Indian people to the soil and to  27 purchase from them their land by treaty of land  28 cession.  Alternatively, we say, the derogation or  29 extinguishment of Indian title could only be  30 accomplished by clear, plain and express language.  31 Now, my lord, on page 131 I begin a section  32 dealing with the Colonial Laws Validity Act, and here  33 we set out an argument with regard to the application  34 of this act, and our proposition regarding it is set  35 out in paragraph 1.  Now, we ask your lordship to  36 refer to this, but depending on time, we may return to  37 this in more detail.  For the time being, my lord, I  38 ask you to look at that, but I shall now direct you  39 ahead to page 146.  Excuse me, 145.  40 This picks up Trutch's letter or memorandum.  In  41 1869, prior to British Columbia's entry into union  42 with Canada, several efforts were made by private  43 individuals and by churchmen to call attention to what  44 many regarded as the unsatisfactory situation  45 regarding aboriginal title in the colony.  A Victoria  46 attorney, Sebright Green, on June 24, 1869, wrote to  47 the Aborigines Protection Society in London seeking 25844  Submission by Mr. Rush        1 assistance for the Indians  and citing, among other  2 things, the failure of the local government to deal  3 with aboriginal title in the Cowichan district.  His  4 letter was forwarded to the colonial office and  5 Secretary of State Granville sent a copy to Governor  6 Musgrave for his review and comment.  Musgrave  7 solicited a response from Joseph Trutch.  8 Trutch wrote a lengthy reply for transmittal to  9 the colonial office defending his Indian land policy.  10 Trutch denied that aboriginal title had ever been  11 recognized in British Columbia, interpreted the  12 Douglas treaty payments as merely gifts in support of  13 amity, and asserted that the Cowichan had never asked  14 to be paid for their lands and never been promised any  15 payment.  16 In the response that he wrote for the colonial  17 office Trutch said that his knowledge of these matters  18 was based on ten years' residence in the colony as  19 well as a review of the government records.  A  20 resident of ten years would place him in the colony  21 during the period 1860 to 1868, when editorials,  22 articles, and letters to the editor in both mainland  23 British Columbia and Vancouver Island newspapers were  24 castigating government for delays in extinguishing the  25 aboriginal title.  The Cowichan area figured  26 prominently in the newspaper accounts both in the  27 Island and the mainland.  The press also published the  28 debates in the legislature regarding extinguishment of  29 Indian land title, and these discussions centred not  30 on the rectitude of the policy (although there were  31 dissenters), but rather on the source of the funds to  32 buy out the aboriginal title.  As noted, Trutch was  33 present at such debates.  34 Now, in 1870 Trutch wrote in his "Memorandum on a  35 letter treating of condition of the Indians in  36 Vancouver Island..." with respect to Indian land  37 matters as follows, and I've set out a good deal of  38 this, my lord.  39 THE COURT:  This is his response to the Sebright Green letter?  40 MR. RUSH:  That's right.  And, my lord, I invite your lordship  41 to read the whole of it, and no doubt my friends will  42 be referring you to passages that they would ask you  43 to read.  44 MR. GOLDIE:  I second my friend's invitation, my lord.  4 5 THE COURT:  Thank you.  46 MR. RUSH:  Well, that's nice to know.  Maybe the motion will be  47 passed. 25845  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submission by Mr. Rush        1  MR. GOLDIE:  Yes.  THE COURT:  If you're agreed then, perhaps I don't need to read  it.  MR. RUSH:  My lord, what I ask you to do is to look at the part  on 147 which is bolded.  THE COURT:  I'll read at least that much.  MR. RUSH:  All right.  The paragraph that I direct you to here,  my lord, is Trutch saying:  "But the title of the Indians in the fee of the  public land, or of any portion thereof, has  never been acknowledged by Government, but, on  the contrary, is distinctly denied."  Now, he makes no distinction there between Vancouver  Island, my lord, and the mainland.  And I say, with  respect to Mr. Trutch, that that's clearly contrary to  the record.  "In no case has any special agreement been made  with any of the tribes of the Mainland..."  Well, so far as we have been able to determine, that  seems to be so.  "...for the extinction of their claims of  possession -- but these claims have been held  to have been fully satisfied by securing to  each tribe as the progress of the settlement of  the country seemed to require -- the use of  sufficient tracts of lands for their wants for  agricultural and pastoral purposes."  There he concedes that the native people had  claims to the soil of the land, but, my lord, with  respect, I say there is no evidence that in the  colonial office or in the colony itself that it was --  that these claims had been held to have been fully  satisfied by securing to each tribe as the progress of  the settlement of the country seemed to require the  use of sufficient tracts of land.  I say that's  completely without any support in the record.  He then goes on to state:  "In 1850 and 1851 shortly after the settlement  at Victoria by the Hudson Bay Company at that  time grantees from the Crown of the whole of 25846  Submission by Mr. Rush        1 Vancouver Island  with full executive powers of  2 Government their agent Governor Douglas made  3 agreements with the various families of Indians  4 then occupying the South Eastern portion of the  5 Island for the relinquishment of their  6 possessory claims in the district of country  7 around Fort Victoria in consideration of  8 certain blankets and other goods presented to  9 them."  10  11 And then he says, my lord:  12  13 "But these presents were - as I understand -  14 made for the purpose of securing friendly  15 relations between the Indians and the  16 settlement of Victoria then in its infancy -  17 and certainly not in acknowledgment of any  18 general title of the Indians to the lands they  19 occupy."  20  21 That sentence stands in complete contradiction to  22 the statement which he had made not two weeks earlier  23 in 1869 to the effect that these lands, my lord,  24 December 30th, 1869, possessed by occupation of the  25 Songhees Indians the whole south-eastern portion of  26 Vancouver Island and that these lands were purchased  27 from the various families of the tribes in the lands  28 claimed by them.  29 THE COURT:  What would you call the south-east portion of  30 Vancouver Island, the Saanich Peninsula?  31 MR. RUSH:  Yes.  32 THE COURT:  I suppose south-east would mean the east half of the  33 Island, would it?  34 MR. RUSH:  I would think so.  Well, the south-east half of the  35 Island.  36 THE COURT:  South-east half of the Island would take you up to  37 and including beyond Nanaimo.  38 MR. RUSH:  Well, I don't think that would accord with the facts,  39 my lord.  These treaties were near the southern tip of  40 Vancouver Island.  41 THE COURT:  You mentioned around Fort Victoria somewhere.  42 MR. RUSH:  Yes.  43 THE COURT:  All right.  Is it convenient to take the afternoon  44 adjournment, Mr. Rush?  45 MR. RUSH:  Yes, my lord.  4 6 THE COURT:  All right.  47 THE REGISTRAR:  Order in court.  Court stands adjourned for a 25847  Submission by Mr. Rush  2  3  4  5  6  7  1  short recess,  I hereby certify the foregoing to  be a true and accurate transcript  of the proceedings transcribed to  the best of my skill and ability.  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Leanna Smith  Official Reporter  UNITED REPORTING SERVICE LTD. 25848  Submissions by Mr. Rush        1 (PROCEEDINGS RESUMED  PURSUANT TO ADJOURNMENT)  2  3 THE COURT:  Mr. Rush.  4 MR. RUSH:  My lord, I am in the middle of 148.  Just dealing  5 with Mr. Trutch's memo.  Trutch made no mention of the  6 fact that Douglas made treaties with Indians at  7 Nanaimo and Fort Rupert as well as those near  8 Victoria.  His characterization of the purpose of the  9 compensation paid does not accord well either with the  10 explicit language of the treaties or with Douglas' own  11 report of his actions.  And I've set out, my lord -- I  12 have repeated in fact Douglas' reporting to Barclay of  13 May 16, 1850 of the establishment of those initial  14 treaties with the Songhees.  15 Douglas reported that he had purchased tracts of  16 land for which he paid compensation.  And there is no  17 mention in the treaties or in his report that the  18 natives were given presents or gratuities for the  19 purpose of peace or friendship, as suggested by  20 Trutch.  21 Furthermore, when the tracts of land ceded under  22 the eleven treaties concluded at Fort Victoria in 1850  23 and '52 are examined, it is seen that Douglas sought  24 to extinguish aboriginal title to contiguous tracts of  25 land from the city -- excuse me, the vicinity of Point  26 Sherringham (east of Sooke on the Strait of Juan de  27 Fuca) to and including the entire Saanich Peninsula.  28 Despite Trutch's denial, this certainly looks like  29 "acknowledgement of a general title of the Indians to  30 the lands they occupy."  And I'd like to refer your  31 your lordship to Wilson Duff's map, my lord, which is  32 to be found at Exhibit 1039-23.  Just ask Madam  33 Registrar to pass that up to you.  It bears on the  34 question that you asked of me just prior to the break.  35 Wilson Duff outlined in the inset the area  36 encompassing the Songhees territories and what he did  37 was to set out, albeit incompletely, the areas that  38 were encompassed with respect to the individual  39 treaties with the individual nations or tribes of the  40 Songhees people.  And there you can see by reference  41 to the name the specific areas that are mentioned with  42 regard to the eleven treaties.  And you can see, my  43 lord, that the -- when you refer to the Songhees  44 territories they are on the south eastern portion of  45 Vancouver Island.  46 THE COURT:  I don't see Songhees on this except in the inset.  47 MR. RUSH:  They are all Songhees, my lord. 25849  Submissions by Mr. Rush  1  THE COURT:  They are all  2  MR.  RUSH:  3  THE  COURT  4  MR.  RUSH:  5  6  7  8  9  THE  COURT  10  11  MR.  RUSH:  12  THE  COURT  13  MR.  RUSH:  14  THE  COURT  15  MR.  RUSH:  16  THE  COURT  17  18  MR.  RUSH:  19  20  21  THE  COURT  22  23  MR.  RUSH:  24  THE  COURT  25  26  MR.  RUSH:  27  THE  COURT  28  MR.  RUSH:  29  30  31  32  33  THE  COURT  34  35  MR.  RUSH:  36  THE  COURT  37  MR.  RUSH:  38  39  THE  COURT  40  MR.  RUSH:  41  42  43  44  45  46  47  They are all Songhees people.  :  I see.  And you can see that southeastern Vancouver Island  showing the areas covered by Fort Victoria treaties  inset former Songhees territories.  Each one of these  peoples' subgroups, if you will, are members of the  Songhees people.  :  And they were all -- these treaties were made in  1850 and 1851?  1850 through '52.  :  Thank you.  And this is --  1039-23, my lord,  :  Ten —  1039.  Exhibit 1039-23.  And that —  :  Yes.  Thank you.  It doesn't show how far inland  they go, does it?  Well, it does not, my lord, because this was -- this  was Duff's best effort to track the language that is  contained in the treaties.  :  Although his inset suggests that it includes most of  downtown Victoria?  Oh, yes.  :  And of course, some considerable more than that and  even the west half of San Juan Island.  Yes.  :  All right.  Thank you.  Yes.  My lord, Miss Mandell informs me that in  Regina and Bartleman the treaties of the Songhees  extended all the way up to the Gulf Islands, into the  Gulf Islands, and included the waterways and the  intervening territory.  :  That's a judicial interpretation of the treaties, is  it?  It's a judicial consideration of one of the treaties.  :  Bartleman?  Yes.  Regina and Bartleman.  I think we've made  reference to it in our material, my lord.  :  Yes, I have seen it before.  Now, I'm on -- my lord, I'm on 150 now.  I take it  you -- I repeat Trutch's comments with regard to the  Cowichan and I refer you to the fact on page 150 that  Douglas had reported that the Cowichan wished to enter  into a land cession treaty at the time the initial  treaties were made, but he declined to do so, at that  time, because no immediate settlement was planned in  the Cowichan Valley.  Douglas explained that he 25850  Submissions by Mr. Rush        1 thought it was better  that payment for land should be  2 made at the time that settlement commenced; otherwise  3 the Indians might forget the treaty arrangements.  And  4 I give your lordship the reference there.  5 Trutch may not have known of the 1850 letter from  6 Douglas to Barclay.  However, he could hardly have  7 been unaware of the long-standing issue of payment to  8 the Cowichan for their lands.  And it is evident from  9 the editorials, letters to the editor, the petition  10 from purchasers of land at Cowichan, the land notices  11 in the British Columbia Gazette, budget estimates to  12 extinguish Cowichan aboriginal title, and other  13 government records cited earlier in this section that  14 it was common knowledge among both government  15 officials and the general public that the Cowichan had  16 demanded payment for their lands and that they had  17 been promised such payment.  18 Furthermore, Trutch's assertions are at variance  19 with reports and documents prepared by Pearse in 1866  20 and 1869 which were deposited in the records of the  21 Lands and Works Office.  Trutch claimed that his 1870  22 response prepared for transmission to the Colonial  23 Office was based on a review of such documents.  In  24 1866 Pearse had reported that it would be necessary to  25 pay for the -- pay the Cowichan for their lands.  In  26 1869 he reported to Trutch that the Douglas treaties  27 extinguished aboriginal title to land payment in  28 blankets.  Pearse had served as Colonial Surveyor  29 since 1851 and thus his views were entitled to notice  30 and rebuttal if Trutch had reason to think that they  31 were ill founded.  32 Trutch made no reference to such records or views  33 in his 1870 report.  It will be recalled that Governor  34 Musgrave had requested Trutch to prepare the 1870  35 report in response to a request for information from  36 the Colonial Office.  This request was made in  37 consequence of mounting publicity in England of the  38 Cowichan situation in particular and of  39 dissatisfaction with the Indian affairs in Vancouver  40 Island generally.  41 Now, my lord, on 152 and over to 153, Dr. Barbara  42 Lane was asked in her direct-examination what tools  43 that she brought to bear in order to evaluate the  44 significance of the passages contained in Trutch's  45 memorandum, and she there sets out the many historical  46 references and the historical record to which she  47 would make reference in her evaluation of that 25851  Submissions by Mr. Rush        1 particular memo.  She  went to on to discuss in her  2 evidence the comments made by Governor Musgrave which  3 was attached to the transmittal to Earl Granville at  4 the Colonial Office.  And at the bottom of 153 I draw  5 your lordship's attention to Musgrave's comments.  I  6 set them out and particularly I draw your attention to  7 the closing words:  8  9 "...  and I now enclose a memorandum from that  10 officer upon the subject.  From other sources  11 of information I have every reason to believe  12 Mr. Trutch's statements to be correct."  13  14 Now, in his letter Musgrave makes no mention of the  15 other sources of information.  And it's hard to  16 imagine what he was referring to exceot those very  17 same documents that were available to and must have  18 been known to Trutch.  There was no other documentary  19 material that was available to Musgrave that would  20 have supported such an erroneous conclusion.  21 Now, Dr. Lane was asked about Musgrave's  22 statements in his transmittal letter of January 29,  23 1870.  And she was asked if in her review of the  24 documentary record whether she had been able to find  25 other sources of information to which Governor  26 Musgrave made reference or to which he had referenced  27 at the time of making his statement and her reply was:  28  29 "I made a diligent effort to search the  30 documentary records which would have been  31 available at that time and is still extant and  32 is available to us to discover if there were  33 any written records to which Governor Musgrave  34 referred that I might be able to refer myself.  35 I was unable to find in any records that I have  36 searched anything that would support the  37 veracity of the allegations made in the  38 memorandum.  I did find a number of records  39 from the government's own holdings of that era  40 which appear not to conform to Mr. Trutch's  41 characterization, but I didn't find any that  42 would have supported it or supported the  43 various contentions made or statements made."  44  45 Now, my lord, as we have noted, the Colonial Office  46 anticipated formal purchases of aboriginal title on  47 the mainland.  Implementation of this part of the 25852  Submissions by Mr. Rush 1            policy was held in  abeyance during the early years of  2 the new Colony and had not been acted upon when  3 Douglas retired in 1864.  The obligation to pay the  4 Indians for extinguishment of their title was never  5 repudiated by the British or by the Colonial  6 government.  Trutch's assertions in 1870 that  7 government had never recognized aboriginal title is  8 simply not in accord with the official directions  9 contained in despatches to Douglas from the Colonial  10 Office.  11 Now, our summary is this:  The documentary review  12 of the record shows recognition of Indian rights in  13 land by Britain and by Colonial government officers of  14 Vancouver Island, the mainland Colony of British  15 Columbia and the United colony.  The documents cited  16 span nearly a hundred years.  17 In these documents the Indian rights are referred  18 to interchangeably as "aboriginal title," and I give  19 the source, "native title" and "aboriginal title."  20 The record reveals a long-standing recognition of  21 the fundamental principles regarding aboriginal title  22 that include the following elements:  23 (a)   aboriginal title should be extinguished when  24 lands are opened for development or  25 settlement,  26 (b)   Indians can only cede their title to the  27 Crown or with the permission of the Crown,  28 (c)   Indian lands should be purchased by the  29 Crown or agents acting on behalf of the  30 Crown,  31 (d)   These purchases of land should be by treaty  32 or agreement,  33 (e)   Indian consent is a necessary component to  34 such arrangements,  35 (f)   Lands sufficient to their needs are to be  36 reserved for the use of the Indians.  37 Now, these principles, we say, are documented in  38 official statements and actions from the earliest  39 British presence on the Northwest Coast through the  40 mid-nineteenth century.  Between 1850 and '54,  41 fourteen treaties were made with Indians in several  42 districts of Vancouver Island.  By means of the these  43 treaties, the Hudson's Bay Company, acting as agents  44 for the Crown, purchased Indian lands.  45 THE COURT:  Is that right, Mr. Rush?  1850 and 1854 fourteen  46 treaties were made in several districts of Vancouver  47 Island?  I thought some were in Nanaimo. 25853  Submissions by Mr. Rush  of  Vancouver Island.  2  THE  COURT:  3  MR.  RUSH:  4  THE  COURT:  5  6  MR.  RUSH:  7  THE  COURT:  8  MR.  RUSH:  9  10  THE  COURT:  11  12  MR.  RUSH:  13  14  15  THE  COURT:  16  17  18  19  MR.  RUSH:  20  THE  COURT:  21  22  23  MR.  RUSH:  24  25  THE  COURT:  26  MR.  GOLDIE  27  THE  COURT:  28  29  30  MR.  RUSH:  31  THE  COURT:  32  MR.  GOLDIE  33  MR.  RUSH:  34  THE  COURT:  35  MR.  RUSH:  36  THE  COURT:  37  38  MR.  RUSH:  39  40  THE  COURT:  41  MR.  RUSH:  42  43  ]  44  45  46  47  THE  COURT:  1  MR. RUSH:  Yes.  Several districts  They are all in Vancouver Island?  All right  Yes.  All right.  Well, I got one other little problem  here.  I thought there was one here --  There is a point, too, my lord, if I can respond.  There is another one here somewhere.  Yes.  Treaty eight in the Northeast corner and we  will be addressing your lordship on that.  What about the one on the island that's been the  subject of some litigation.  There is a treaty at Fort Rupert, which is on the  Northeastern part of the island, and treaties at  Nanaimo.  Yes.  But there is a gentleman paid $100,000 for an  island from MacMillan Bloedel and it's been the  subject of some litigation.  Wasn't that covered by a  treaty?  No, my lord.  It's not?  All right.  I seem -- I thought I  recalled somewhere that there was a treaty involved in  that.  No, my lord.  I think that you are referring to the  factual matrix of the Meares Island case.  No, no.  :  Is it Lyell Island you're talking about?  No, no.  It's a poor little logger who paid $100,000  to MacMillan Bloedel and there is an injunction  against him.  Yes.  That's Deer Island, my lord.  Deer Island, yes.  :  Deer Island, yes.  And that involved the Fort Rupert treaty.  So it did involve the Fort Rupert treaty?  Yes.  And that was one of the Douglas treaties.  I had an idea that it was not far from -- was it  Alert Bay or not that far north?  It's on the mainland -- excuse me, my lord, it's on  Vancouver Island across from Alert Bay.  Yes. All right.  My lord, just one other point.  I have the submission  that we make here on 156 is that the treaties were  made with Indian in several districts of Vancouver  Island.  My point about Bartleman is that that's not  to be confined to the land mass of Vancouver Island  but it includes islands in the Gulf.  Yes.  Yes. 25854  Submissions by Ms. Mandell        1  MR. RUSH:  And as well as the  fisheries and waterways in the  2 Gulf.  3 THE COURT:  Yes.  4 MR. RUSH:  And my lord, the Bartleman reference is in our  5 authorities at Volume 8 roman -- excuse me Volume VII,  6 tab 40.  7 THE COURT:  Thank you.  8 MR. RUSH:  Now, at the bottom of page 156 I conclude with these  9 records, my lord:  The record is clear that subsequent  10 land purchases were contemplated on Vancouver Island  11 and that the British Crown expected land purchases to  12 be effected by treaty or other agreement in the  13 mainland Colony of British Columbia as well.  The  14 documents show that the anticipated land purchases  15 were held in abeyance because of financial constraints  16 and other concerns, although land reserves were made.  17 In 1870 Trutch claimed that aboriginal claims to  18 land were held to have been fully satisfied by the  19 setting aside of Indian reserves as settlement  20 progressed.  There is nothing in the documentary  21 record to support this contention, nor is there (apart  22 from Trutch) a repudiation of the requirement to  23 extinguish aboriginal title in any official documents  24 from 1776 to 1870.  25 The operative law in the Colonies of Vancouver  26 Island, British Columbia and the United Colonies was  27 to recognize aboriginal title in the colonies and for  28 the Crown to purchase lands from Indians, with their  29 consent.  This was recognized and enunciated in the  30 Royal Proclamation, in other eighteenth century  31 documents and crystallized in the common law.  32 And these principles, we say, were in effect with  33 respect to the lands now known as British Columbia at  34 least as early as 1776 and continued to be Imperial  35 policy thereafter.  36 Now, my lord, this concludes the documentary --  37 our argument on the documentary review up to 1871.  We  38 will now turn the focus of the argument to a  39 consideration of the applicable law as it touches on  40 the ordinances and proclamations in the Colonial  41 period.  And I will ask Miss Mandell to address you on  42 that.  4 3 THE COURT:  Thank you.  44 MR. RUSH:  Thank you.  45 MS. MANDELL:  My lord, my colleague David Patterson is with me  46 at counsel table.  47 THE COURT:  Thank you.  Mr. Patterson.  May I say before you go, 25855  Submissions by Ms. Mandell        1 Mr. Rush, that at some  time I would be grateful if you  2 could give me a list of all the counsel that have  3 appeared with you on this case so that I can be sure  4 and get everyone mentioned in the list of counsel  5 appearing on the case and the same to Mr. Goldie and  6 perhaps Mr. Wolff can ask Mr. Macaulay to do the same  7 thing.  I think I know them all, but I could have  8 forgotten somebody way back and I hate to leave  9 somebody's name out of a case like this.  10 MS. MANDELL:  My lord, I might mention that Mr. Patterson  11 appeared once before and his name appeared for months  12 thereafter on the transcript, so I can appreciate your  13 comments that people seem to -- My lord, I am handing  14 up to your lordship the portions of the argument which  15 I'll be addressing and --  16 THE COURT:  Thank you.  17 MS. MANDELL:  — provide one for Madam Registrar for the  18 Reporter.  19 THE COURT:  So that I will know how many questions I can ask  2 0 without usurping your time unduly, how long do you  21 think you are going to be with these 80 odd ages, 90  22 pages?  23 MS. MANDELL:  What are we doing?  We are going to sit until  24 four?  25 THE COURT:  Till four and then from about 5:30 until seven I  26 understand.  27 MS. MANDELL:  I am going to try and finish.  2 8 THE COURT:  Yes.  29 MS. MANDELL:  Yes.  I am going to try and finish.  You can still  30 ask questions, but I am going to try and finish.  31 THE COURT:  All right.  Thank you.  32 MS. MANDELL:  Thank, my lord.  I'd like to focus us out of the  33 documents for a minute and ask you to turn your mind  34 to Exhibit 9A and 9B.  And why I ask you to turn to  35 the territories is at this point the argument is  36 addressed to what the requirement is in law for the  37 Crown to indicate its intention to extinguish the  38 aboriginal title which has been displayed on maps 9A  39 and 9B and which has been the subject of much evidence  40 over the course of the last three years.  And when we  41 are examining the different ordinances and the  42 different proclamations which the Province has alleged  43 have extinguished aboriginal title, I would ask you to  44 measure the tests which are being contended for  45 against the very many discrete and distinct House  46 boundaries which have been forged over time, the  47 acquisition of crests which you have heard much about 25856  Submissions by Ms. Mandell        1 which arise through  the experience of their ancestors  2 of the plaintiffs on the territory, the migrations  3 which you have heard so much about where Houses have  4 merged and divided and villages have formed and  5 settled in one place and then moved to another  6 location as circumstances dictated, the two thousand  7 or more place names which are throughout the maps 9A  8 and B, the evolution and enforcement of the laws  9 against trespass, and I'd like you to also have in  10 your mind the names of the chiefs, Delgamuukw, Wah tah  11 ghet, chiefs names which have been passed for  12 centuries through one chief to another, each of the  13 chiefs being responsible for the caring for the  14 territory within their House boundaries, and the  15 granting of access rights to members of their House  16 and to others of their kinship relationships who are  17 part of the overall relationships of the feast.  And  18 we say that this is really not in the abstract but in  19 the concrete what the test which we are arguing for is  20 about.  What does it take for those peoples' rights on  21 that land to be extinguished in law?  And I ask you to  22 keep that --  23 THE COURT:  But surely the test is what is the test for the  24 extinguishment of the then chief at the time of the  25 alleged extinguishment, surely.  Not the test for what  26 extinguished the present chiefs' alleged right.  27 MS. MANDELL:  Well, I say that the test is the same in both  28 cases.  There is going to -- what we are asking and  29 what the defendant Province is asking for your  30 lordship to determine at this time is that there were  31 certain ordinances between -- and proclamations passed  32 in the preconfederation period which had the effect of  33 extinguishing title, and in so doing what they are  34 urging upon you is a test that can be applied for the  35 extinguishment of aboriginal rights.  And what we're  36 asking you to do is to keep firmly placed in your mind  37 that there are people and lands involved.  It's true  38 from what you have said that if the Province's  39 submission were to be accepted, we are talking about  40 the extinguishment of the ancestors of our plaintiffs'  41 rights in a certain period of time, but we are also at  42 the same time addressing the fact that you've seen  43 these rights as they have been expressed on the ground  44 from the time of contact, before that time and to the  45 present.  And it's those rights that these pieces of  46 legislation are being pitted against to say that they  47 were extinguished. 25857  Submissions by Ms. Mandell        1  THE COURT:  Yes.  2 MS. MANDELL:  And I might also ask you to keep firmly in mind at  3 the same time what was said by Mr. Justice Hall in  4 Calder when he pointed out the words of Tysoe, Mr.  5 Justice Tysoe at the Court of Appeal, and he at page  6 206 in his judgment said in this regard, quoting Mr.  7 Justice Tysoe:  8  9 "It is true as the Appellants have submitted  10 that nowhere can one find express words  11 extinguishing title."  12  13 And I have put that quote at page 178 of the argument,  14 but I wanted at this point to advance it to your  15 lordship up front.  And you can find that -- you can  16 find that at 178.  17 THE COURT:  178, yes.  Thank you.  18 MS. MANDELL:  What we have, and I'll be later addressing it in  19 more specific detail, is a series of legislative  20 enactments which primarily provide for the  21 establishment of the government and the colony, the  22 sale of lands in the colony, the importation of the  23 civil and criminal laws of England, and the union of  24 British Columbia with Canada.  And in all this  25 legislation there is not to be found a single  26 provision addressing either of the existence of  27 aboriginal title nor providing for its extinguishment.  28 Now, I'm reading at page 159.  2 9  THE COURT:  Yes.  30 MS. MANDELL:  Mr. Rush and Mr. Jackson have already submitted at  31 length the plaintiffs' first argument is that  32 legislation ought not to be construed as extinguishing  33 aboriginal title in the absence of Indian consent.  34 This is a proposition as part of the common law.  It's  35 the plaintiffs' alternative submission, and it is a  36 submission fully in the alternative, that  37 extinguishment of aboriginal title could only be  38 effected by express legislative enactment  39 demonstrating a "clear and plain" intention to  40 extinguish title.  The onus is on the defendant Crown  41 to prove extinguishment.  42 Now, this was, as your lordship is aware, the  43 subject of the divided court in Calder.  Mr. Justice  44 Hall after reviewing the cases in support of the  45 Nishga's position that aboriginal title could be  46 extinguished "only by specific legislation," concluded  47 at page 210: 25858  Submissions by Ms. Mandell        1  2 "It would, accordingly, appear to be beyond  3 question that the onus of proving that the  4 sovereign intended to extinguish the aboriginal  5 title lies on the respondent and that intention  6 must be 'clear and plain.'"  7  8 THE COURT:  I am sure you notice that comment by Mr. Justice  9 Corey in that judgment that Mr. Willms gave us  10 yesterday.  11 MS. MANDELL:  I wasn't here yesterday.  I haven't read the  12 transcript yet.  13 THE COURT:  Well, there is a -- there is a phrase in there that  14 surprised me because the Supreme Court of Canada has  15 been very very careful ever since Calder to leave open  16 this question, but Mr. Justice Corey in one perhaps  17 flowaway line said -- commented that there was a  18 question of whether the title had been extinguished  19 actually or inferentially.  20 MS. MANDELL:  Is this the selling — the recent Supreme Court  21 of --  22 THE COURT:  Yes.  I doubt if it's a considered pronouncement.  23 MS. MANDELL:  That was to do with the section 12 of the Natural  24 Resource Transfer Agreement.  25 THE COURT:  Yes.  But he is talking about extinguishment of  26 aboriginal rights.  27 MS. MANDELL:  I will have to read it.  I haven't read the  2 8 judgment in detail.  29 THE COURT:  You'll want to press I'm sure that it's a casual —  30 MS. MANDELL:  A casual —  31 THE COURT:  -- statement made per incuriam.  32 MS. MANDELL:  Well, of course it certainly can't be the ratio of  33 the case because there was treaties and there was the  34 transfer treatment agreement and so on.  35 MR. GOLDIE:  I am sure my friend can put it in the same category  36 as Mr. Justice Dickson's comments in Guerin.  37 THE COURT:  Or Mr. Justice Hall's in Calder.  38 MS. MANDELL:  Oh, I don't think so.  39 THE COURT:  Mr. Justice Hall's is the ratio of his judgment.  40 MR. GOLDIE:  Oh, yes.  41 THE COURT:  Yes.  Well, it's just something when you mentioned  42 it that I thought I should comment that I read the  43 judgment last night and I was surprised to find it  44 stated somewhat -- what I thought somewhat casually,  45 with the greatest respect.  46 MS. MANDELL:  Mr. Justice Judson held that the extinguishment of  47 aboriginal title can be implied insofar as: 25859  Submissions by Ms. Mandell        1  2 "The sovereign authority elected to exercise  3 complete dominion over the lands in question,  4 adverse to any right of occupancy which the  5 Nishga Tribe might have had, when, by  6 legislation, it opened up such lands for  7 settlement, subject to the reserves for land  8 set aside for Indian occupation."  9  10 And it's our submission that the test enunciated by  11 Mr. Justice Hall that legislative extinguishment of  12 aboriginal title can be only found on proof of a clear  13 and plain intention to extinguish is the correct test  14 and this Court should reject the proposition that  15 extinguishment can be implied.  16 Now, we draw support, subject to what I have to  17 say further about the cases that your lordship  18 mentions, from all of the cases which have been  19 decided since Calder both in this country and that of  20 the United States.  21 The Supreme Court of Canada has stated that the  22 Crown will be held to "strict proof" of  23 extinguishment.  24 And this was part of the case, the reasoning of  25 the case in Simon, where as your lordship will recall  26 there had been a treaty of 1752 between the British  27 Crown and the Micmacs, and the Crown argued that the  28 treaty extinguished native rights in lands outside of  2 9 the reserve.  And the argument was advanced by the  30 Crown that absolute title in the land covered by the  31 treaty lies with the Crown and therefore the Crown has  32 the right to extinguish any Indian rights in the land.  33 And further, the Crown through occupancy by the white  34 man has in effect extinguished native rights.  And you  35 will recall that in that case it was a case where a  36 man from the Micmac nation was charged with well on a  37 road, a Provincial road, with a gun and the question  38 was whether or not the hunting rights recognized and  39 affirmed by the treaty were part of the fabric of  40 right that he could rely upon as against the  41 application of Provincial law.  The -- and what the  42 Crown was asserting is that extinguishment had  43 occurred in a sense by implication, that is there had  44 been the settlement throughout the area and that the  45 highway was certainly part of the Provincial domain  46 and that the Crown had the right to extinguish  47 following the treaty.  And the court refused to give 25860  Submissions by Ms. Mandell        1 effect to this  argument of implied extinguishment:  2  3 "Given the serious and far-reaching  4 consequences of a finding that a treaty right  5 has been extinguished, it seems appropriate to  6 demand strict proof of the fact of  7 extinguishment in each case where the issue  8 arises."  9  10 And then quoting Santa Fe:  11  12 "'Extinguishment cannot be lightly implied.'  13  14 It is impossible for this Court to consider the  15 doctrine of extinguishment in the air; the  16 respondent must anchor that argument in the  17 bedrock of specific lands."  18  19 THE COURT:  Is that the Supreme Court of Canada?  2 0 MS. MANDELL:  Yes.  21 THE COURT:  I have some trouble with the proposition that a  22 Court can say it's extinguished and another Court can  23 come along and say in different facts it's not  24 extinguished.  25 MS. MANDELL:  Well, that may be — that may be an important  26 factor in reading the decision that your lordship has  27 referred me to and I'm going to have to go into it and  28 see how it comes about.  I do know that there has been  29 this aberration in all Indian law in my opinion when  30 people -- when the courts have looked at cases arising  31 out of the Prairie Transfer Agreements, because there  32 was a very unique and different Constitutional  33 arrangement which the Federal Government and the  34 provinces agreed to through the Transfer Agreements  35 which the courts in Cardinal and others have held --  36 have changed the normal Constitutional division of  37 powers between the Federal and Provincial Governments,  38 at least as it relates to the application of the  39 Wildlife Act on Indian people.  And so I suspect that  40 when we read this judgment it's going to conform to  41 the pattern of the Prairie provinces, but may not  42 necessarily conform to the pattern throughout the rest  43 of the country.  44 THE COURT:  All right.  45 MS. MANDELL:  In the case of Regina versus Paul at the Court of  46 Appeal La Forest, Mr. Justice La Forest, as he then  47 was, found that although a railway line which was 25861  actually  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submissions by Ms. Mandell        1 authorized by statute  passed, and must have  been contemplated as passing through the reserve, the  Indian interest in reserve land was not thereby  abrogated.  And this is a case, my lord, where in the  usual way where the railway lines seem to get the Red  Sea parted for what they want to do, there was  legislative provision for the railway line to take on  a certain pathway and it did and it happened to go  through the reserve and the statute so authorized it,  but the Court of Appeal said that the Indian interest  in reserve land was not thereby abrogated.  After  quoting the statement of Mr. Justice Hall to the  effect that an intention to extinguish must be "clear  and plain," Mr. Justice La Forest continued:  "This appears to be a special application of  the general presumption that the Legislation  does not, in the absense of clear words, intend  to interfere with vested rights...."  "The presumption against interference with  vested rights to which I have just referred  goes further.  When a taking is, in fact,  unauthorized -- "  THE COURT:  No.  That says "authorized."  MS. MANDELL:  I am sorry:  "-- authorized by statute, it is presumed that  compensation will be paid:...  This, like the  presumption against taking, must apply with  additional force to the taking of Indian lands  because this affects the honor and good faith  of the Crown."  And I should just advise your lordship that the  Supreme Court of Canada expressly did not decide the  question as it's been raised here by Mr. Justice La  Forest but indicated that it might hold as Mr. Justice  La Forest did, unless the Indian interest was one of  enjoyment and occupation only.  And I could also here  address to you the case of our B.C. Court of Appeal in  Surrey Peach Arch, which has been quoted with approval  throughout the country, where there the B.C. Court of  Appeal said that the Indian interest was more than  enjoyment and occupation but included a reversionary  interest even when the use and occupation aspect of 25862  Submissions by Ms. Mandell        1 the title was in the  hands of another person.  It was  2 ninety-one twenty-four lands.  It was lands that were  3 conditionally surrendered.  And in the course of the  4 judgment it was held that they didn't fit under the  5 definition of reserve in the Indian Act, but were  6 ninety-one twenty-four lands.  7 MR. GOLDIE:  I am obliged to my friend.  I couldn't remember  8 whether those were reserve lands or otherwise, my  9 lord.  10 MS. MANDELL:  They were ninety-one twenty-four lands but not  11 reserve lands.  12 The suggestion -- recent decisions of the Surpeme  13 Court of the United States, and we will be referring  14 to some of them later, have reaffirmed and applied the  15 test of "plain, clear" express extinguishment.  And  16 the two most recent ones which have applied the test  17 are the Oneida case and the Dann case and I have given  18 to your lordship the references in our material.  19 The suggestion that both Hall and Judson expounded  20 the same test for extinguishment is erroneous.  In  21 Baker Lake Mr. Justice Mahoney concluded:  22  23 "To say that the necessary result of  24 legislation is adverse to any right of  25 aboriginal occupancy is tantamount to saying  26 that the legislator has expressed a clear and  27 plain intention to extinguish that right of  28 occupancy.  Justices Hall and Judson were, I  29 think, in agreement on the law, if not its  30 application in the particular circumstances."  31  32 A reading of their judgments discloses that Mr.  33 Justice Hall and Judson were not in agreement in fact  34 on the law insofar as two distinct tests for  35 extinguishment are advanced.  In the Supreme Court of  36 Canada in the Paul case the courts agreed:  37  38 "In Calder, ... two views,"  39  40 not one, as Mr. Justice Mahoney suggests,  41  42 "... two views were expressed as to what was  43 necessary to show that the sovereign intended  44 to extinguish aboriginal title.  Mr. Justice  45 Judson thought that alienation and other acts  46 inconsistent with the existence of an  47 aboriginal title was sufficient Mr. Justice 25863  Submissions by Ms. Mandell        1 Hall...was of  the view that such an intention  2 must be 'clear and plain.'"  3  4 THE COURT:  But isn't it possible to be clear and plain by  5 inconsistent acts?  6 MS. MANDELL:  Well, we say no.  We say that that's an implied  7 extinguishment and if your lordship will bear with us,  8 we say that there has to be something expressed in the  9 statute.  10 THE COURT:  Well, I can see the difference between express and  11 inferential, but I don't see -- I could see how "clear  12 and plain" could stand together with "implied."  13 MS. MANDELL:  We say that there has to be some legislative --  14 THE COURT:  You say it has to be expressed.  15 MS. MANDELL:  Expression.  That's right.  It has to be an  16 expression.  Now --  17 THE COURT:  It can't just be implied.  18 MS. MANDELL:  It can't be implied.  And if I could ask your  19 lordship just to turn to the next page and to the next  20 cession, I am going to give some examples of clear and  21 plain language which has been held by the courts  22 either through statute or through Order-in-Council or  23 through judicial comments to be capable of effecting  24 extinguishment.  I'll first refer to the words of Mr.  25 Justice Hall where he had before him a body of  26 primarily the same enactments that your lordship will  27 consider.  And he said that:  28  29 "If the Colony had intended extinguishing the  30 aboriginal title to public could  31 have easily have said 'aboriginal title to  32 public lands in the Colony is hereby  33 extinguished.'  No such enactment or one with  34 language to like effect was ever passed."  35  36 Now, there is other examples of "clear and plain."  37 I refer to the treaties and the first set of treaties  38 which are not the modern land claims agreements but  39 which were the ones primarily enacted in Ontario and  40 through the provinces were almost -- almost without  41 exception confirmed by Order-in-Council.  And the  42 wording of the treaties, and I've taken the wording as  43 it was stated in the treaty which was the numbered 6  44 Treaty considered by the Supreme Court of Canada in  45 Horse, and at page 164 the Indians in the treaty, and  46 this is the Plain and Wood Cree people:  47 25864  Submissions by Ms. Mandell 1                   "... cede,  release, surrender and yield up to  2 the government of the dominion of Canada for  3 Her Majesty the Queen and Her successors  4 forever, all their rights, titles, and  5 privileges whatsoever, to the lands included  6 within the following limits,"  7  8 And then there is a description of the lands which are  9 surrendered.  And we say that's pretty clear and  10 pretty plain and pretty express.  11 Now, all of the modern land claims agreements  12 carry similar provision.  And if I could first refer  13 you on page 165 to the Alaska Native Claims  14 Settlement Act, all three provisions (a) to (c) are  15 examples of clear and plain language, but I've  16 underscored (b) as an examples of it:  "All aboriginal  17 tiles, if any."  So whether we are still in a debate,  18 they may or may not exist:  19  20 "All aboriginal titles, if any, and claims of  21 aboriginal title in Alaska based on use and  22 occupancy, including submerged land underneath  23 all water areas, both inland and off shore,  24 and including any aboriginal hunting and  25 fishing rights that may exist, are hereby  26 extinguished."  27  28 And in exchange, Congress compensated the Alaskan  29 Indian people collectively with about $962.5 forty  30 million of acres of land in fee simple.  The James Bay  31 agreement, section 3:  32  33 "All native claims, rights, titles and  34 interests, whatever they may be, in and to the  35 Territory, of all Indians and all Inuit,  36 wherever they may be, are hereby  37 extinguished,..."  38  39 And it's the same wording in the Western Arctic  4 0 Claims Settlement Act.  41 The Lipan Apache case and the Mabo and State of  42 Queensland case are recited there also at this stage  43 in the argument for examples of clear and plain  44 language.  In the Lipan Apache case which was cited --  45 THE COURT:  I wonder, Miss Mandell, if we shouldn't adjourn now  46 before you --  47 MS. MANDELL:  Carry on. page  case  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  25865  Submissions by Ms. Mandell        1  THE COURT:  There is only a one-  MS. MANDELL:  I can do the point in about two minutes.  THE COURT:  All right.  You can finish that.  MS. MANDELL:  Finish the point then we will stop.  THE COURT:  Yes.  MS. MANDELL:  In the Lipan Apache case the Court of Claims  considered the issue of what acts constitute  extinguishment of title.  And in that case it was  determined that aboriginal title existed in the Lipan  Apache people when Texas entered statehood in 1845.  Now, in a debate which is going to ring familiar as it  happened in the St. Catherine's Milling case in  Canada, the State said well, we have got the  underlying fee, therefore we can extinguish title.  And in the same way as the division of power occurs  here it occurs there.  The Federal Government had the  responsibility of extinguishing aboriginal title and  not the Province.  And there was -- the Texas  Legislature, pursuant to its thought power that it  could extinguish title, passed an act which declared,  and it's at the underscored portion of the page:  It  recognized no title at all in Indian tribes within  the state of Texas.  And that's a clear and  unequivocal Legislative intent.  And what the Court of  Claims did was say that while that was clear and  express, the state of Texas had no power to do it.  And so the title was not extinguished on that case.  And in the State of Queensland case, what happened  there was that the Queensland Parliament passed a 1984  act purporting retrospectively to abolish all rights  and interests the plaintiffs may have owned and  enjoyed before its enactment in the territory.  And if you will turn to page 168 I've highlighted  some of the ways in which the act was worded.  In (a):  "The island were vested in the Crown and right  of Queensland -- "  This is for the purpose of removing any doubt as to  who has what:  "The islands were vested in the Crown in right  of Queensland freed from all other rights,  interests and claims of any kind whatsoever and  became waste lands of the Crown in Queensland  for the purposes of section 30 and 40 of the  Constitution Act." 25866  Submissions by Ms. Mandell        1  2 Stated in paragraph 5, no compensation payable, and  3 5(b) :  4  5 "in respect of any right, interest or claim  6 alleged to have existed prior to the annexation  7 of the islands to Queensland or in respect of  8 any right, interest or claim alleged to derive  9 from such a right, interest or claim, or  10 (c)  by reason of any provision of this Act."  11  12 Now, we say that that's -- that language and court  13 also said clearly and expressly and plainly  14 extinguishes title.  In this case the Act was found  15 ineffective as against the Indian people because it  16 was violative the Racial Discrimination Act, but we  17 cited here to demonstrate an example of what the  18 courts and the cases have seen to be clearly plain and  19 express language.  And that's an appropriate time, my  20 lord, for the break.  21 THE COURT:  All right.  We will resume at 5:30 and you want to  22 go until about 7 o'clock.  23 MS. MANDELL:  Okay.  24 THE COURT:  And if you're close we will stay and finish.  25 MS. MANDELL:  Okay.  26  2 7 (PROCEEDINGS ADJOURNED AT 4:00 P.M.)  28  29 I hereby certify the foregoing to  30 be a true and accurate transcript  31 of the proceedings transcribed to  32 the best of my skill and ability.  33  34  35  36  37  38 Laara Yardley,  39 Official Reporter,  4 0 UNITED REPORTING SERVICE LTD.  41  42  43  44  45  46  47 25867  Submissions by Ms. Mandell        1 (PROCEEDINGS RESUMED  FOLLOWING SHORT RECESS)  2  3 SUBMISSIONS BY MS. MANDELL:  4  5 THE COURT:  Miss Mandell.  6 MS. MANDELL:  My lord, in reply to your question about the  7 Person case, it's at page 20 of the judgment which got  8 miraculously moved over by the commuter by pressing a  9 button.  10 THE COURT:  Yes.  11 MS. MANDELL:  At the outset, two established principles must be  12 borne in mind:  First, the onus of proving either  13 express or implied extinguishment lies upon the  14 Crown."  Then he cites Simon and Calder.  "Secondly,  15 any ambiguities in the wording of the treaty must be  16 resolved in favour of the Indian people.  And he cites  17 Nowegijick.  What we take from this is that in citing  18 Simon it was clearly held that there was express  19 extinguishment required and Calder which cited the  20 debate, what he is saying is that whatever the  21 principle is he is not there attempting to resolve it,  22 the point he is stating, which is so, is that the onus  23 of proving either expressed or implied, whatever that  24 is, lies upon the Crown.  And then he cites the --  25 THE COURT:  I would expect the Crown would accept that.  26 MR. GOLDIE:  I do.  27 THE COURT:  The point of my raising it was just in passing that  28 he says express or implied.  29 MS. MANDELL:  I think he is just saying he is not resolving the  30 debate and he cited Calder in support.  31 MR. GOLDIE:  The best I can do with that, I will agree that he  32 didn't expressly say he was resolving the debate of  33 implicit extinguishment.  34 MS. MANDELL:  However, we do say when you look at the cases  35 which have been decided after Calder, the weight of  36 authority overwhelmingly is on the side of express  37 extinguishment and you notice he cites Simon and that  38 is the position of the court in that case.  39 THE COURT:  But Symonds — I am sorry, that's Simon?  4 0 MS. MANDELL:  Simon.  41 THE COURT:  All Simon said is that it had to be clear.  42 MS. MANDELL:  Simon said it can't be lightly implied, in the  43 air, bedrock of land.  And then after that La Forest  44 and Paul and the two U.S. cases Oneida and Dan.  45 I am at page 169.  My lord, we say that Mr. Justice  46 Judson's decision was fundamentally in error and I  47 address that on four separate points.  First is that 25868  Submissions by Ms. Mandell        1 he mis-characterized  the nature of aboriginal title,  2 he mis-characterized the test, he misconceived the  3 relationship between aboriginal title and Crown title,  4 and, finally, that his lordship's reasons are  5 inconsistent with principles of statutory  6 construction, of which he considered none in the body  7 of his judgment.  8 If I could begin by describing the mis-  9 characterization of the nature of title, both Mr.  10 Justice Judson and Hall present two different  11 characterizations of title.  Mr. Justice Hall presents  12 what I say is a full and ample definition whereas Mr.  13 Justice Judson presents a de minimis one.  Mr. Justice  14 Hall described the Nishga claim to be in the nature  15 of:  16  17 "...a usufructary right and a right to occupy  18 the lands and to enjoy the fruits of the soil,  19 the forest, and of the rivers and streams..."  20 "...the right to remain in possession  21 themselves and to enjoy the fruits of that  22 possession."  23  24 In contrast, Mr. Justice Judson describes  25 aboriginal title to be simply the permission of whites  26 that Indians occupy certain lands.  And he is there  27 following the Tee-Hit-Ton case.  28 Since Calder, the more ample definition of  29 aboriginal title has been affirmed by the Supreme  30 Court of Canada.  In Guerin, Mr. Justice Dickson  31 described the Indians' interest in their land as a  32 pre-existing right, and you have been referred to that  33 quote, and he characterized the title as an interest  34 in land to be sui generis.  35 Now, in the further decision of the Supreme Court  36 of Canada, in the case of Regina versus or CP versus  37 Paul, the Supreme Court considered the nature of the  38 interest in land as a proper first step to considering  39 the issue of extinguishment.  And, he said, this is  40 the -- this is the judgment of the court:  41  42 "Before turning to the jurisprudence on what  43 must be done in order to extinguish the Indian  44 interest in land, the exact nature of that  45 interest must be considered."  46  47 And I pause here to state that it matters how the 25869  Submissions by Ms. Mandell        1 interest is  characterized when the question of  2 extinguishment is considered.  Because if, as was done  3 with Mr. Justice Judson, the interest is of a minimal  4 nature and not a property right and not -- has no  5 proprietory interest to it, if it's a very hardly  6 recognizable shadowy sort of thing, then the test for  7 extinguishment would be certainly less stringent than  8 if, as Mr. Justice Hall described it, it was a right  9 in the land and to enjoy the fruits and the possession  10 of the produce of the land.  11 Now, the court in Paul set up the problem and they  12 cited first the St. Catherines Milling case, and I am  13 just going to read from the underscored passage:  14  15 "This has at times been interpreted as meaning that  16 Indian title..."  17 THE COURT:  Whose language is this?  18 MS. MANDELL:  This is the court's, the Supreme Court of Canada,  19 and I forget the judge.  It was unanimous.  20 THE COURT:  I have an idea that it was La Forest, but I am not  21 certain.  22 MS. MANDELL: No, he was at the Court of Appeal.  23 THE COURT:  He was in the Court of Appeal.  All right.  24 MS. MANDELL:  25  26 " This has at times been interpreted as meaning  27 that Indian title is merely a personal right  28 which cannot be elevated to the status of a  29 proprietary interest so as to compete on an  30 equal footing with other proprietary interests.  31 However, we are of the opinion that the right  32 was characterized as purely personal for the  33 sole purpose of emphasizing its generally  34 inalienable nature."  35  36 He quotes A. G. Quebec and A. G. Canada, and says  37 that the inalienability feature was, later in the  38 paragraph "...a protective measure for the Indian  39 population lest they be persuaded into imprudent  40 transactions."  And the court in Paul quotes the court  41 in Guerin, first Madam Justice Wilson:  42  43 "The bands do not have the fee in the lands;  44 their interest is a limited one.  But it is an  45 interest which cannot be derogated from or  46 interfered with by the Crown's utilization of  47 the land for purposes incompatible with the 25870  Submissions by Ms. Mandell        1 Indian title,  unless, of course, the Indians  2 agree."  3  4 And you have been referred to the decision of Mr.  5 Justice Dickson on this point.  But at page 172 I  6 simply want to direct to your attention again to the  7 underscored passages where Mr. Justice Dickson  8 describes it as "a unique interest in land", and  9 that's in the middle of the quote at 172, and he then  10 concludes that the "Indians have a legal right to  11 occupy and possess certain lands, the ultimate title  12 to which is in the Crown."  13 The court reviews Mr. Justice Judson's statements  14 in Calder as to the origin of aboriginal rights, "...  15 when the settlers came, the Indians were there,  16 organized in societies..."  And then concludes at the  17 underscored passage at 172:  18  19 "The inescapable conclusion from the Court's  20 analysis of Indian title up to this point is  21 that the Indian interest in land is truly sui  22 generis.  It is more than a right to enjoyment  23 and occupancy although, as Dickson, J. pointed  24 out in Guerin, it is difficult to describe what  25 more in traditional property law terminology."  26  27 I should just advise you that in CP versus Paul,  2 8 the judgment is delivered by the court.  2 9  THE COURT:  All right.  They do that sometimes when they are  30 embarrassed.  31 MS. MANDELL:  That mysterious pet judge.  32 THE COURT:  Mysterious manifestation.  33 MS. MANDELL:  We say then that the characterization which Mr.  34 Justice Judson posed of aboriginal title, has been  35 decidedly overtaken by the authorities of the Supreme  36 Court of Canada.  And at this point in our submission  37 we say that it's an error in his judgment which  38 influenced the final outcome of his conclusions that  39 extinguishment can be lightly implied -- or could be  4 0 impliedly concluded.  41 Now, the second error is that he misconceived the  42 nature of the test.  And I am at page 173.  In Calder,  43 Mr. Justice Judson reviewed the proclamation and  44 ordinances and despatches relied upon, I say, by the  45 provincial defendant and approved Mr. Justice Gould's  46 conclusion that they showed a unity of intention to  47 exercise and the legislative exercising of absolute 25871  Submissions by Ms. Mandell        1 sovereignty over all  the lands of British Columbia, a  2 sovereignty inconsistent with any conflicting  3 interest, including aboriginal title.  I am always  4 struck by the word conflicting because it's not, in my  5 submission, that aboriginal title is a conflicting  6 interest, it's a compatible or a co-existing interest,  7 and it's indicative of the perception of aboriginal  8 title by Mr. Justice Judson and Mr. Justice Gould that  9 there is something necessarily conflicting about the  10 aboriginal interest in the land.  11 Anyways, Mr. Justice Judson relied on the Santa Fe  12 case to support his finding that extinguishment could  13 occur by implication through the operation of the  14 named instruments.  And I am not going to take you to  15 the first quote of the Santa Fe case, it was not  16 mentioned and Mr. Rush -- and ought to have been in  17 the analysis that the rights do not have to be  18 recognized by the Crown in order for them to exist,  19 that they are pre-existing rights.  And Mr. Justice  20 Judson and Mr. Justice Hall both quoted the Cramer  21 case, which is the authority and the starting point of  22 that discussion.  23 But having so done that, Mr. Justice Judson then  24 goes on to say:  25  26 "Extinguishment of Indian title based on  27 aboriginal possession is of course a different  28 matter.  The power of Congress in that regard  2 9 is supreme.  The manner, method and time of  30 such extinguishment raises political not  31 justiciable, issues."  32  33  34 And he quotes the cases that are there cited:  35  36 "'The exclusive right of the United States to  37 extinguish' Indian title has never been  38 doubted.  And whether it be done by treaty, by  39 the sword, by purchase, by the exercise of  40 complete dominion adverse to the right of  41 occupancy, or otherwise, its justness is not  42 open to inquiry in the courts."  43  44  45 Now, that's what Mr. Justice Judson relied upon in  46 continuing to decide as he did as to the effect of the  47 statutes. 25872  Submissions by Ms. Mandell        1 If I could move you  to page 196, I think I can make  2 the point by reference to a later portion of the  3 argument.  The Santa Fe case.  4 THE COURT:  What page?  5 MS. MANDELL:  Page 196.  The Santa Fe case, which is the quote  6 taken from it by Mr. Justice Judson, is set out at  7 page 196, and the court -- the conclusion of Santa Fe  8 is not supportive of the portion of the quote which  9 was taken by Mr. Justice Judson. In that case the  10 court concluded that the creation of a reserve, a  11 reservation by an Act of Congress, did not extinguish  12 aboriginal title.  And the quote:  13  14 "We search the public records in vain for any  15 clear and plain indication that Congress in  16 creating the Colorado River reservation was  17 doing more than making an offer to the Indians,  18 including the Walapais, which it was hoped  19 would be accepted as a compromise of a  20 troublesome question.  We find no indication  21 that Congress by creating that reservation  22 intended to extinguish all of the rights which  23 the Walapais had in their ancestral home.  That  24 Congress could have effected such an  25 extinguishment is not doubted.  But an  26 extinguishment cannot be lightly implied in  27 view of the avowed solicitude of the Federal  28 Government for the welfare of its Indian  29 wards...the rule of construction recognized  30 without exception for over a century has been  31 that 'doubtful expressions, instead of being  32 resolved in favour of the United States, are to  33 be resolved in favour of a weak, defenceless  34 people, who are wards of the nation...'"  35  36 And so on and so on.  I will just ask you to finish  37 the quote.  38 If I could take you -- leave your finger at 196  39 because I am going to return back to it, but go back  40 to 174.  In the case of Lipan Apache, the court  41 recited the statement which was cited by Judson in  42 Santa Fe, but went on to address the manner in which  43 extinguishment must occur.  And that extinguishment  44 must be clear and plain.  You will see the quote read  45 earlier into the record as the first part of the  46 quotation cited above and attributed to the Santa Fe  47 case, and then to the underscored passage: 25873  Submissions by Ms. Mandell        1  2 "While the selection of a means is a  3 governmental prerogative, the actual act (or  4 acts) of extinguishment must be plain and  5 unambiguous.  In the absence of a 'clear and  6 plain indication' in the public records that  7 the sovereign 'intended to extinguish all of  8 the claimants' rights' in their property,  9 Indian title continues."  10  11 And if I could ask your lordship to return again to  12 page 196, and I will here attempt to demonstrate that  13 the Lipan Apache case, as it, in our submission,  14 properly recited the rule in Santa Fe, has been  15 accepted in our court.  16 And I am at the bottom of page 196.  17 THE COURT:  Yes, so am I.  18 MS. MANDELL: The Supreme Court of Canada has approved the  19 language in Sante Fe in support of the requirement  20 that there be strict proof of the extinguishment,  21 contrary to the use of the language by Mr. Justice  22 Judson.  In the Simon case the court said that it:  23  24 "...seems appropriate to demand strict proof of  25 the fact of extinguishment in each case where  26 the issue arises. As Mr. Justice Douglas said  27 in United States and Sante Fe, 'extinguishment  28 cannot be lightly implied.'"  29  30 The test set out by Mr. Justice Hall that the  31 intention to extinguish must be clear and plain is  32 with reference to the language in Santa Fe as it was  33 applied in the Lipan Apache.  On the issue of whether  34 the Republic of Texas had extinguished the  35 pre-existing rights the Lipan Apache court held:  36  37 "In the absence of clear and plain indication in  38 the public record that the sovereign intended  39 to extinguish all of the claimants' rights in  40 their property, aboriginal title continues..."  41  42 Now, at page 197 to page 201, I set out the facts  43 and the arguments which were presented to the court in  44 the Lipan Apache case.  And I am not going to take  45 your lordship again through it, I think Mr. Jackson  46 has in part, but I do want you to, in reading this,  47 note that there were a number of arguments raised, all 25874  Submissions by Ms. Mandell        1 of which asked the  court to imply extinguishment  2 through a number of different methods.  For example,  3 at page 198, the argument raised was that there had  4 been a refusal to ratify a treaty, which it was argued  5 by the United States illustrated the Republic of Texas  6 policy of extinguishing rights and the court of claims  7 rejected this argument.  8 And then at page 199, and I am looking in the  9 middle of the quotation, there was an act of the  10 Republic of Texas which:  11  12 "...did authorize the president to survey vacant  13 lands on which all the 'friendly Indians'  14 within the Republic shall be placed as soon as  15 circumstances permit."  16  17 And it was argued that that act which authorized  18 the president to survey lands and set them up as  19 reserves constituted an act of extinguishment and this  20 was rejected by the court.  21 And, finally, at page 199, it was argued that the  22 government intended to extinguish title because it was  23 evident through a series of trading posts that they  24 were attempting to foster trade and commerce and to  25 provide a flexible line for settlement to occur.  And  26 again the court rejected this as being evidence of  27 extinguishment.  28 And finally at page 200, the court contended with  2 9 the argument advanced to it that the -- there was a  30 number of policy statements which were made from time  31 to time where it was clear that there was a non-  32 recognition of title, and the court looked at the  33 historical record and said that the history is  34 decidedly against the argument, but also that they  35 would not accept policy statements as being proper --  36 I am just trying to get the language -- basically they  37 said it's not proper for there to be reliance placed  38 on policy statements to support the extinguishment of  39 title.  And that's found within the quote on page 200,  40 and I won't read it to your lordship.  41 Finally, at page 201, the second major case which  42 was relied upon by Mr. Justice Judson in forming his  43 test was the Tee-Hit-Ton case.  And I know that Mr.  44 Jackson has spoken about Tee-Hit-Ton at great length,  45 but if I could here add that the decision was denying  46 that compensation was -- the decision was with respect  47 to whether or not compensation was due under the 5th 25875  Submissions by Ms. Mandell        1 Amendment.  That was  the issue of the case.  The case  2 did not concern the question of extinguishment.  And  3 at the bottom of page 201, whether a right is  4 compensatable and whether a right is extinguished are  5 separate and distinct questions.  A right may be  6 extinguished by compensation but the fact that a right  7 is not compensatable does not automatically mean that  8 that right is non-existent.  9 Now, at the bottom of page 202, I direct your  10 lordship to the fact that Tee-Hit-Ton has not been  11 cited by the Supreme Court of the United States in any  12 of its recent decisions discussing aboriginal title  13 and extinguishment.  And I draw to your attention both  14 the Dan and the Oneida case.  15 If I could return you back to page 174, our  16 conclusion on this point is that Mr. Justice Judson,  17 as I have stated, applied the wrong test based on the  18 cases which he relied upon.  I would, though, like to  19 also reconcile the argument of consent with the  20 argument of express extinguishment in this way, and I  21 say what could be clearer and plainer that the Indian  22 people and the Crown both intended there to be  23 extinguishment than a treaty, where both parties are  24 at the table and they agree with what they each  25 understand each other to be stating.  And I say that  26 that that is by far the clearest and plainest  27 indication of consent and, in the alternative, I have  28 already advanced legislative enactments which we say  29 are also clear and plain.  30 The third error which we say Mr. Justice Judson  31 fell into is that he misconceived the relationship  32 between aboriginal title and Crown title.  And, my  33 lord, I will be addressing you on this in greater  34 detail tomorrow when we talk about the relationship of  35 the -- how aboriginal title fits into the scheme of  36 federalism.  But I wanted here to remind you of the  37 statements made by Johnson and M'Intosh, which were  38 referred to your lordship this morning, that the title  39 was to the exclusion of all other Europeans, and it  40 necessarily gave to the nation making the discovery,  41 the sole right of acquiring the soil from the natives  42 and establishing settlements upon it.  It was a right  43 which no European could interfere with.  And we say  44 that the statement of the common law all along  45 recognized two estates, that being an estate of the  46 Crown, based upon discovery, and an estate of the  47 Indians, which was the title capable of being 25876  Submissions by Ms. Mandell        1 extinguished.  And we  say that those titles are  2 compatible and have been held to be so by the courts  3 for a long time and Mr. Justice Judson wrongly  4 accepted the trial judge's conclusion that there was a  5 unity of intention where the sovereignty which was  6 exercised by the acts was inconsistent with any, as he  7 put it, conflicting interest.  8 Now, I will be addressing the particulars of the  9 Proclamation in more detail later, but with respect to  10 the issue of the land proclamations, basically all  11 these proclamations did was they first declared that  12 the lands, mines and minerals in the colony belonged  13 to the Crown and then they set out conditions for the  14 sale and pre-emption of lands.  15 We say that legislation declaring that the lands in  16 the colony belong to the Crown in fee is not  17 determinative of extinguishment, since it has long  18 been established that aboriginal title is capable of  19 co-existing with the ultimate ultimate title of the  20 Crown.  And I refer you to the St. Catherines Milling  21 case, which I will be describing in more detail  22 tomorrow, where the Privy Council dealt with the issue  23 of whether the beneficial interest in lands ceded by  24 the 1873 treaty, became vested in the province or in  25 the Dominion.  And in discussing the relationship  26 between the Crown title and aboriginal title, in the  27 ceded territory, Lord Watson says:  28  29 "The Crown has all along had a proprietary  30 estate in the land upon which aboriginal title  31 was a mere burden.  The ceded territory was at  32 the time of the union lands vested in the Crown  33 subject to 'an interest other than that of the  34 province in the same' within the meaning of  35 section 109."  36  37 The principle of aboriginal title co-existing with  38 Crown title has constantly been restated in Canadian  39 law.  40 THE COURT:  Consistently.  41 MS. MANDELL:  Consistently.  Thank you.  In my haste to get out  42 the door, I have to slow down.  43 THE COURT:  You can constantly read that as consistently.  44 MS. MANDELL:  In the Guerin case, nearly a century after the  45 decision in the St. Catherines Milling, Mr. Justice  46 Dickson noted again that "Indians have a legal right  47 to occupy and possess certain lands, the ultimate 25877  the Crown  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submissions by Ms. Mandell        1 title of which is in  ,"  This principle of  co-existence has been traditionally pronounced in the  United States, and we cite the Symonds and Tamaki and  Baker case.  My lord, if I could here pause and remind you of  the submissions made by Mr. Rush this morning, and I  will refer you to the page where he makes them, but  not ask you to go back there, and he is speaking at  page 27 of the grant of Vancouver Island to the  Hudson's Bay Company.  And you will recall that the  grant makes no mention of aboriginal title but that  the confidential memo says that the Crown in parting  with the lands, parts only with her right in the land,  and that the decision makers in Britain saw two  titles, that of the Indian people and that of the  Crown as compatible and governed we say by the  principles of the common law.  So while there was no  express mention of aboriginal title in the grant,  there was certainly a recognition by the Crown, we  say, that the two titles could co-exist.  And  similarly --  THE COURT:  Can the Crown take away with one hand what it has  given with another?  As a matter of construction,  does -- can the Crown make a grant which comes to be  construed as what it has done, and then is the court  limited by what one of the parties volunteered was the  meaning of all this?  Surely, the grant must be  construed as a matter of law, doesn't it?  MS. MANDELL:  The grant itself?  THE COURT:  Yes, without regard to the gratuitous or voluntary  comments of parties that were involved in the  transaction?  MS. MANDELL:  Well, there is three things to say about that:  One is that the issue before the court here is not the  grant, it's the legislation which sets up the power to  make the grant.  And that's, I think, a very different  thing than if there was actually a grant issued.  The  second is that the grant itself --  THE COURT:  Was there not a grant?  MS. MANDELL:  No, we are not looking at grants, we are looking  at acts.  THE COURT:  I mean when -- I thought that the Imperial Crown  granted Vancouver Island to the Hudson's Bay Company?  MS. MANDELL:  I am sorry.  There was a grant, that's right,  there was a grant of Vancouver Island to the Hudson's  Bay Company.  But the issue is whether or not the  silence on the question of aboriginal title can be 25878  Submissions by Ms. Mandell        1 construed as having  extinguished it.  And your  2 lordship will recall the discussion around, for  3 example, the Cowichan lands referred to by Mr. Rush  4 this morning, where the government issued grants to  5 settlers where aboriginal title had not yet been  6 extinguished.  And the controversy arose because the  7 settlers said we want you to you extinguish the title  8 and give us not just what you've got but what the  9 Indians have as well.  10 THE COURT:  What's been troubling me, not seriously but it's  11 been crossing my mind with a lot of this evidence, is  12 whether or not as a matter of law, I can, or I am  13 required to pay any attention to what the parties said  14 they had in their minds when I am considering what  15 they have done.  And in commercial law, one wouldn't  16 be able to do that.  If A and B enter into a contract,  17 then in the absence of something like mutual mistake,  18 the intentions of the parties unexpressed is of no  19 consequence.  20 MS. MANDELL:  Well, in this case what you're being asked to do  21 is to construe whether or not acts which are silent on  22 the question of aboriginal title can be, by virtue of  23 all of the surrounding documents, can be construed as  24 intending the extinguishment of aboriginal title.  25 That's the difference between a commercial  26 transaction, where you have got to consider the nature  27 of the transaction between the parties to determine  28 whether the rights are there.  But this is a case  29 of -- that, at this point in the argument, is one of  30 statutory construction.  And can you construe these  31 acts as providing the legal framework for the  32 extinguishment of aboriginal title?  33 THE COURT:  One of the problems we judges have is we have to  34 recognize our peers will look critically on what we  35 have done, and I can see Miss Southin saying, how can  36 you ever pay any attention to all of all these learned  37 gentlemen?  Look at their actual deeds and their  38 actual grants.  And don't worry about all the  39 gratuitous comments that they made along with them.  40 MS. MANDELL:  I think that if I were talking to Madam Justice  41 Southin I would say to her that you are not looking at  42 the grants, you are looking at the acts and if the  43 act —  44 THE COURT:  You mean the statutes?  45 MS. MANDELL:  The statutes.  You are looking at the  46 proclamations and the ordinances and you are asking  47 yourself whether or not these proclamations and 25879  Submissions by Ms. Mandell        1 ordinances are  sufficiently expressed to divest Indian  2 people of their pre-existing legal rights.  3 THE COURT:  All right, then what difference does it make what  4 the -- even the colonial secretaries said and enclosed  5 the documents?  I can understand the instructions,  6 those stand on a different footing.  This is a passing  7 thought, don't trouble yourself with it unless you  8 think it's something you should give some thought to.  9 MS. MANDELL:  It's something probably we should respond to on  10 reply, because what we are doing is anticipating the  11 argument of the provincial Crown that in spite of the  12 fact that there is nothing said on the face of these  13 statutes which expressly extinguish aboriginal title,  14 in spite of that you can read under these acts and see  15 that that's what the parliament primarily intended,  16 and we say that if you are going to read under the  17 acts to see what parliament intended, we say that  18 there was an expression of the existence of aboriginal  19 title and not an expression that it was intended to be  20 extinguished.  21 THE COURT:  All right.  Just another question that's whirling  22 around in my head, as to how much attention I can pay  23 to all these observations and comments and  24 recognitions, I think is the word that I have been  25 hearing a lot of, that somebody recognized something,  26 and I am wondering how much attention I should pay to  27 what people recognized.  28 MS. MANDELL:  Well, I would be very happy if at the end of the  29 day you looked at the ordinances and the proclamations  30 and the statutes and asked yourself, is there an  31 express intention here to extinguish?  Is that what's  32 going on?  If the answer to that is no, I say you  33 don't have to go further than that, because that's the  34 express intention as expressed through the ordinances.  35 THE COURT:  My next question is, is it the intention that  36 counts?  37 MS. MANDELL:  Is it intention?  That's what the cases say.  I  38 will get to that, actually.  There is a very good  39 discussion that by La Forest.  40 THE COURT:  I have to pay attention to what he says.  41 MS. MANDELL:  You do?  42 THE COURT:  Yes.  43 MS. MANDELL:  I am at page 176 and I simply draw to your  44 lordship's attention there that Mr. Justice Hall had  45 no difficulty in finding the co-existence between the  46 ordinances and proclamations and despatches, and  47 aboriginal title, and I am not going to read to you 25880  Submissions by Ms. Mandell 1            his conclusion on that  but I urge you to adopt it.  2 Finally, the last point which we say where we argue  3 that Mr. Justice Judson erred was that his decision is  4 inconsistent with principles of statutory  5 construction.  And I must say that I was taken aback  6 in reading Mr. Justice Judson's decision again that  7 there was no mention of any principles of statutory  8 construction in reviewing the ordinances and the  9 proclamations.  And I say that this is a fundamental  10 error.  And had he applied the presumptions which are  11 embodied in the law, in our submission he couldn't  12 have found, as he did, that there could be an implied  13 extinguishment.  14 I don't have to remind your lordship of what Mr.  15 Jackson and Mr. Rush have submitted, that at the time  16 when the colony was formed, the case of Regina versus  17 Symonds had already held that it can not be too  18 solemnly asserted that it, that is aboriginal title,  19 is intended to be respected.  20 I also ask your lordship to review the cases relied  21 upon here by Mr. Justice Hall in Calder at page 208  22 and 209, where he relied on the Symonds case and also  23 on the Lipan Apache case, for the presumption that the  24 British Crown intended to respect rights and that when  25 the Indian people came under the British sovereignty  26 they were entitled to assert their aboriginal rights  27 as a legal right.  That's in his judgment at page 208  28 and 209.  I haven't referred to it in our argument.  29 And again Mr. Justice Dickson, who recited the same  30 proposition a little bit more strongly in Guerin, and  31 I will refer you to page 81 of Mr. Rush's argument,  32 where he recited there that quote.  33 Mr. Justice Judson interpreted the colonial  34 legislation to find an implied legislative intent to  35 extinguish.  And we say that this finding is  36 inconsistent with the rules of statutory construction.  37 The first rule that we ask your lordship to  38 consider is that only express legislative statements  39 support the taking away of a vested right.  And we  40 here draw to your attention Craies that defined who --  41 where the rule is defined:  42  43 "Express and unambiguous language appears to be  44 absolutely indispensable in statutes passed for  45 the following purposes:  Imposing a tax or  46 charge; conferring or taking away legal rights,  47 whether public or private; excepting from the 25881  Submissions by Ms. Mandell        1 operation of or  altering clearly established  2 principles of law."  3  4 And we say that the principle expressed in Craies  5 makes clear that the rule is applied in areas of major  6 importance and we submit that the extinguishment of  7 aboriginal title is both the taking away of a legal  8 right and also altering clearly established principles  9 of law.  10 Now, if I could take you to the bottom of page 178,  11 the second rule of construction which we say ought to  12 have been applied is that where possible the statute  13 is to be construed to give reasonable effect to it.  14 And I rely upon Mr. Justice La Forest, as he then was,  15 in the Estabrooks Pontiac case, where -- you remember  16 that case was a discussion of the extent to which a  17 lien created under the Social Service and Federal Tax  18 Act for an amount of tax collected by a vendor applies  19 to property owned by someone other than the vendor.  20 So he was dealing with the question of the application  21 of basically a law which could expropriate somebody's  22 property without so stating it expressly.  He says:  23  24 "There is no doubt that the duty of the courts  25 is to give effect to the intention of the  26 Legislature as expressed in the words of the  27 statute.  And however reprehensible the result  28 may appear, it is our duty if the words are  29 clear to give them effect.  This follows from  30 the constitutional doctrine of the supremacy of  31 the Legislature when acting within its  32 legislative power.  The fact that the words as  33 interpreted would give an unreasonable result,  34 however, is certainly ground for the courts to  35 scrutinize a statute carefully to make  36 abundantly certain that those words are not  37 susceptible of another interpretation.  For it  38 should not be readily assumed that the  39 Legislature intends an unreasonable result or  40 to perpetrate an injustice or absurdity."  41  42 And we submit that to interpret the words used in  43 the colonial legislative enactments to mean that  44 extinguishment of aboriginal title was effected must  45 assume that the Imperial Parliament and/or the  46 Colonial legislative "intends an unreasonable result  47 or to perpetrate an injustice or absurdity." 25882  Submissions by Ms. Mandell        1 We say that the  best example of this is the  2 conclusion of Mr. Justice Tysoe in Calder in the Court  3 of Appeal.  And having set out the provisions of the  4 land legislation, concluded:  5  6 "As a result of these pieces of legislation the  7 Indians of the colony of British Columbia  8 became in law trespassers on and liable to  9 actions of ejectment from lands in the colony  10 other than those set aside as reserves for the  11 use of the Indians."  12  13 As noted by Mr. Justice Hall:  14  15 "Any reasoning that would lead to such a  16 conclusion must necessarily be fallacious.  The  17 idea is self destructive.  If trespassers, the  18 Indians are liable to prosecution as such a  19 prosecution which reason itself repudiates."  20  21 THE COURT:  What's he talking about there?  22 MS. MANDELL:  He is talking about the fact —  23 THE COURT:  What prosecution can there be for trespass?  24 MS. MANDELL:  What prosecution —  25 THE COURT:  Trespass is a civil law, it's founded in damages.  26 Is there an offence of trespass?  27 MS. MANDELL:  Yes, I thought it was also a provincial offence.  28 THE COURT:  Well, it may be a provincial offence.  It doesn't  29 matter.  30 MR. GOLDIE:  I don't think unoccupied Crown land it's an  31 offence, my lord.  32 THE COURT:  With the greatest respect, Mr. Justice Hall is  33 perhaps overstating the proposition.  He didn't need  34 to go that far to hurt Mr. Justice Tysoe's feelings I  35 am sure.  36 MS. MANDELL:  I feel compelled to defend Mr. Justice Hall —  37 THE COURT:  I have thought -- In first year law we were taught  38 the sign "Trespassers Will Be Prosecuted" is legal  39 nonsense.  And I have always had that view that it is  40 a legal nonsense.  41 MR. GOLDIE:  If unaccompanied by damage.  42 THE COURT:  Well, prosecution is not a term that applies to  43 trespass I was taught in first year law.  44 MS. MANDELL:  Although —  45 THE COURT: Or unless it's an offence somewhere that could be  46 prosecuted.  It sounds in damages, for which the word  47 prosecution is not an appropriate term. 25883  Submissions by Ms. Mandell        1  MS. MANDELL:  We will find out.  2 THE COURT: I would be glad if you would.  Disabuse me of a  3 misconception I have carried for 40 years.  4 MS. MANDELL:  I hope —  5 MR. GOLDIE:  We will be assisting in that regard, my lord, and I  6 can tell my friend what the answer is.  7 THE COURT:  But as I say I don't think you should trouble  8 yourself.  I don't think anything turns on it.  9 MS. MANDELL:  I am concerned here with the point that I believe  10 Mr. Justice Hall eloquently made, and that is that  11 reason repudiates that the Indian people who have  12 lived and occupied and possessed that territory since  13 time immemorial, could be dispossessed without there  14 being a word mentioned about that in some act and  15 suddenly become trespassers on the land which they  16 were living.  17 THE COURT:  Mr. Justice Hall could have made his point just as  18 easily and just as well, if he had said that the  19 Indians be liable to an action for damages.  That  20 would have been just as serious.  21 MS. MANDELL:  However —  22 THE COURT:  And the slightest bending of a blade of grass would  23 be damages.  That's all it would take, as I understand  2 4            my common law.  25 MS. MANDELL:  Well, my lord, the result which Mr. Justice Hall  26 said reason would repudiate, is what happened not  27 before Confederation but after Confederation, when the  2 8 governments, the provincial government took the view  29 that there was no aboriginal title remaining.  And  30 between pages 180 to 185 I set out some but not all of  31 the evidence which shows how the Wet'suwet'en people  32 were treated after Confederation, as trespassers on  33 their land.  And we say, in a proposition which reason  34 repudiates.  35 And I will just take you quickly through the effect  36 on the land if the interpretation urged by the  37 province and which was decided upon by Mr. Justice  38 Judson could be construed as being effective.  39 In the Cee Tait, Basil Michell described his life  40 there, and there were four houses, a smokehouse a  41 storage cache and a Laksilyu totem pole.  42 MR. GOLDIE:  I object to the -- to this evidence, which as I  43 understand it, relates to this South African War Land  44 Grant Act, being used to construe colonial ordinances.  45 I understood this section dealt with the construction  46 of these ordinances.  47 THE COURT: I think what Miss Mandell is doing is showing the 25884  Submissions by Ms. Mandell        1 absurdity of the  construction of these -- of this  2 language, that from which she thinks -- she says the  3 province contends, she is showing that if the province  4 is right then these people could have either been  5 prosecuted or sued for damages.  6 MR. GOLDIE:  Well, that arose out of the South African War Land  7 Grant.  8 THE COURT:  A different statute.  9 MR. GOLDIE:  Yes, passed in 1901, under which people were  10 granted rights in land which were taken to be in  11 competition with these people.  Now, how that has got  12 anything to do with the proper construction of the  13 ordinances which the province, which the colony passed  14 between 1858 and 1871, I cannot see.  I put it more  15 strongly, my lord, I say that this history, with which  16 I will be dealing when I deal with the South African  17 War Land Grant, cannot be used to construe statutes  18 which were passed years before.  19 MS. MANDELL:  Well, Mr. Goldie is right that I don't say that  20 this -- these actions which occurred to these  21 Wet'suwet'en people, flowed out of the pre-  22 Confederation ordinances, but we do say that in  23 applying the test that Mr. Justice La Forest described  24 in the Estabrooks Pontiac, the effect of the  25 construction which is being urged upon your lordship,  26 as to how these statutes could be construed, creates  27 or perpetrates an injustice, and in our view creates  28 an absurdity, an unreasonable result, and the result  29 which it creates was illustrated by the actions taken  30 after Confederation, where the Wet'suwet'en people  31 were in fact treated as trespassers on their own land.  32 THE COURT:  Well, what you're entitled to say, I suppose, is  33 that these Wet'suwet'en people had aboriginal rights  34 to these lands and that should have protected them  35 even from the South African Land Grant legislation,  36 unless that legislation can be said to have  37 extinguished your aboriginal rights.  38 MS. MANDELL:  We will say that too, but what we are saying here  39 is that if your lordship will accept the fact that the  40 pre-Confederation land ordinances could extinguish  41 aboriginal title, without so stating that, and treat  42 the Indian people as trespassers on their land, we can  43 show you the injustice that that construction will  44 create because such a result, that is Indian people  45 treated as trespassers on their land was before you in  46 the evidence and you have, in a sense, evidence before  47 you which Mr. Justice Hall thought that reason would 25885  Submissions by Ms. Mandell        1 repudiate, but which  you can very clearly see as would  2 be the result of the construction which is being urged  3 upon you about implied extinguishment.  4 THE COURT:  Well, I think I understand what you're saying.  I  5 think what Mr. Goldie is saying that you don't need  6 this evidence, which springs -- which relates to  7 conduct which springs out of totally different  8 legislation in order to make your point, that --  9 MS. MANDELL:  We don't need this evidence.  We would like to use  10 it in argument.  11 THE COURT:  Well, there is another factor here that doesn't  12 really relate to your argument, that is the South  13 African Land Grant legislation.  14 MS. MANDELL: That's true, we are not saying there is a perfect  15 cause and effect between the evidence and the  16 interpretation, but we are saying that you can see  17 through the evidence the effect of the application of  18 the rule which is going to be urged upon you by the  19 provincial defendant, through the acts which occurred  20 to the Wet'suwet'en people.  21 THE COURT:  What you have got to say is if they had been ejected  22 because of the colonial ordinances it would be an  23 absurdity.  24 MS. MANDELL:  And an injustice.  25 MR. GOLDIE:  If that's the argument, I will deal with that.  26 THE COURT: All right.  I am not going to stop you, Miss Mandell,  27 I think, however, that the argument loses some of its  28 force because the conduct you are complaining about  29 sprung from different legislation.  30 MS. MANDELL:  I accept that imperfection of it.  31 Basil Michell's life at Cee Tait he described in  32 some detail, and I am not going into all of it, there  33 was, as I said, four houses, approximately 50 horses  34 and cows, the family grew potatoes, planted turnips  35 and in the fall they fished for trout, salmon was put  36 in cache houses where they were stored, trapping was  37 done in the winter and people built winter houses out  38 of spruce bows.  And Basil described it as a village.  39 He described that when Josephine, who is his  40 sister, was a baby, as he put if "still in diapers",  41 her family and the other Wet'suwet'en families living  42 there, women and children were evicted from their  43 homes and he described the families who were evicted  44 and he said that when the officials came to remove his  45 family, his father and George Naziel's father  46 resisted, he said, "When the of white people came,  47 they had a scuffle with my father Lame Artthur Michell 25886  Submissions by Ms. Mandell        1 and George Naziel's  father."  2 Then at page 182, when Basil's family went to  3 Hagwilget to fish in the spring, Lame Arthur and  4 George's father were both arrested and put into jail,  5 and Basil described as a child visiting his father:  6  7 "We used to go down to Old Hazelton and watch  8 him work.  They had him working on the  9 streets...I was unable to talk to him because  10 the police were watching them at all times  11 while they were working."  12  13 And while his father and his uncle were in jail  14 they survived on salmon, they lived in a tent and he  15 says:  16  17 "It was in the fall.  I remember the leaves were  18 turning yellow.  We lived in the tent during  19 the winter as well as the fall and then in the  20 spring my father had built a cabin next to  21 where the tents were and that's where we moved  22 in the summer time."  23  24  25 The horses which had been at Barrett Lake were  26 grazed at Hagwilget and he says that after his family  27 was evicted:  28  29 "They burnt the buildings down and after that we  30 never went back again."  31  32 And Mr. Rush read to you his final statement about  33 that, how he felt when the cabins were burnt in the  34 opening.  I should just say when we were taking the  35 commission evidence of Basil Michell, that's all he  36 wanted to talk about.  He tolerated us for the rest of  37 his questions but he really wanted to get this story  38 out.  It's something he held on to for 65 years.  39 Other Wet'suwet'en people were also, as Basil put  40 it, "chased off the land."  And I will just identify  41 as page 184 the testimony of Emma Michell.  She  42 testified that Canyon Creek was taken away from Jimmy  4 3 Thomas:  44  45 "That land at Canyon Creek was taken away for  46 nothing by the white people... they chased them  47 out; they never paid nothing for the land... it 25887  Submissions by Ms. Mandell        1 is located in  the direction of Drift Wood Creek  2 on the other side of the highroad...there is a  3 big farm out there the white man has that  4 place."  5  6 And Johnny David's father also had a house taken:  7  8 "When he died the white people burnt it down and  9 they kicked me off."  10  11 He said:  12  13 "I received a letter from him telling me to get  14 off the land."  15  16 This was from Mr. Loring.  But he says there was  17 going to be other land given but he says it wasn't.  18 At page 185, Round Lake Tommy, this is Johnny David  19 talking:  20  21 "He was a very good man, worked hard and when he  22 was kicked off his land some of the non-Indian  23 people took Round Lake Tommy to an area East of  24 Houston where he was given a small portion of  25 land."  26  27 And then we say at page 185, that the experience  28 of these Wet'suwet'en elders could not have been the  29 intended result of a reasonable interpretation of  30 instruments which did not expressly extinguish the  31 rights to the land and where the colonial government  32 of the day had no real knowledge even of their  33 existence or their relationship to the land.  34 We say that the court must scrutinize each  35 enactment carefully to make certain that the words  36 used are not susceptible of another interpretation.  37 And we say that there are certain presumptions  38 which the court could and should apply when construing  39 enactments which may be susceptible of another  40 interpretation.  41 And we say, at page 186, that there is another  42 interpretation that the words of these colonial  43 enactments are to be interpreted only as extinguishing  44 aboriginal title, and we say that they are certainly  45 susceptible equally to the interpretation, and we say  46 the preferred interpretation, because there is nothing  47 said in them, that aboriginal title was not mentioned 25888  Submissions by Ms. Mandell        1 and was not considered  and was not extinguished.  And  2 we rely upon basically two areas, both of which have  3 been submitted to you, that legislation declaring that  4 the lands and mines in the colony belong to the Crown  5 is not determinative of extinguishment in light of the  6 co-existence of Crown title.  And then all of the  7 material which was submitted to you this morning by  8 Mr. Rush, which we say also shows that there is no  9 necessary intention expressed in the act that title is  10 to be extinguished.  11 At the bottom of page 186, this is actually what I  12 was going to refer you to when you asked that question  13 earlier, when a statute is reasonably susceptible to  14 two meanings, the courts will, in order to determine  15 the intent of the legislature, invoke certain  16 presumptions.  And in the Estabrooks case, Judge La  17 Forest said, these presumptions:  18  19 "...were designed as protection against  20 interference by the state with the liberty or  21 property of the subject, hence it was  22 'presumed' in the absence of a clear indication  23 in the statute to the contrary, that parliament  24 did not intend prejudicially to affect the  25 liberty or the property of the subject."  26  27 And I refer you to the Western Counties case where  28 express and unambiguous language in a statute is  29 required to show the legislative -- to show the  30 legislative intent to take away legal rights.  It's  31 not enough to show that what is authorized will take  32 away the rights, it must also be shown that the  33 legislature authorized the thing to be done, despite  34 its interference with existing rights.  I will refer  35 to that case later, but the facts of it were that he  36 claimed a right of possession which -- to a railway  37 and was, at Confederation, argued that there was  38 nothing mentioned in the act which he said took away a  39 vested right and the act was not read so it was --  40 even though the effect of it might have been to take  41 away the right, it wasn't implied.  42 The presumption discussed in Estabrooks Pontiac,  43 was -- the rationale for it was stated, and again Mr.  44 Justice La Forest says:  45  46 "This scarcely means that the courts should  47 attempt to reframe statutes to suit their own 25889  Submissions by Ms. Mandell        1 individual  notions of what is just or  2 reasonable.  However, legislative supremacy is  3 not all there is to the constitution.  In  4 determining whether a statute is just and  5 reasonable, the courts can derive considerable  6 assistance from the nature and origins of our  7 political organization as a parliamentary  8 democracy."  9  10 Then he goes on to say that we place a high premium  11 on individual liberty and private property.  And at  12 the bottom of the quote:  13  14 "Indeed, for a time after the English  15 Revolution, the English courts appeared to be  16 prepared to hold statutes that invaded rights  17 of this kind invalid.  18 With the complete realization of the  19 implications of parliamentary supremacy, this  20 type of judicial approach, of course,  21 disappeared.  But the original foundations of  22 our governmental organization remained as a  23 legacy in a number of presumptions designed, as  24 Driedger notes at page 137, 'as protection  25 against interference by the state with the  26 liberty or property of the subject'. 'Hence",  27 he adds, 'it was "presumed" in the absence of  28 clear indication in the statute to the  29 contrary, that Parliament did not intend to  30 affect the liberty or property of the subject'.  31 One of these presumptions is that a statute  32 should not, in the absence of clear words, be  33 construed as taking the property of an  34 individual without compensation.  This, of  35 course, frequently arises in expropriation  36 cases but it is not limited to these."  37  38 You will see he is talking about in construing  39 statutes, and that's what we are here talking about.  40 THE COURT:  What do think he means by the English Revolution,  41 1688?  42 MS. MANDELL: That's what I would think and say.  43 THE COURT:  How much longer are you going to be?  44 MS. MANDELL: I think I can do it in half an hour.  45 THE COURT:  All right.  I think we are going to change  46 reporters.  I think we will take whatever time is  47 necessary to do that. 25890  Submissions by Ms. Mandell        1  2 (PROCEEDINGS ADJOURNED FOR SHORT RECESS)  3  4  5  6  7  8  9 I hereby certify the foregoing to be  10 a true and accurate transcript of the  11 proceedings herein to the best of my  12 skill and ability.  13  14  15  16  17 Wilf Roy  18 Official Reporter  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 25891  Submission by Ms. Mandell        1 (PROCEEDINGS RECONVENED  AT 6:35 P.M.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Ms. Mandell.  5 MS. MANDELL:  Thank you.  My lord, you've been here since 9:00  6 in the morning.  Are you still here?  7 THE COURT:  Oh, I don't feel bad while I'm here.  It's when I  8 leave that I don't feel so good.  I miss you people  9 when we adjourn.  10 MS. MANDELL:  Empty-nest anxiety.  11 THE COURT:  You're at 18 8?  12 MS. MANDELL:  I'm at 188.  I was in the middle of the Estabrooks  13 case, and I referred -- am referring to the  14 presumption against interference with vested rights,  15 and I note that Mr. Justice La Forest refers to the  16 Manitoba Fisheries case where the court extended the  17 concept of vested right to include loss of goodwill  18 and argued -- supported the argument that the  19 plaintiff was entitled to compensation.  And he  20 referred to the A.G. v. Dr. Keyser's Royal Hotel case,  21 which was also relied on in the Manitoba Fisheries  22 case, and also the B.C. Medical Association case.  And  23 the underscored passage I ask you to note:  24  25 "The Legislature cannot fairly be supposed to  26 intend, in the absence of clear words showing  27 such intention, that one man's property shall  28 be confiscated for the benefit of others, or of  29 the public, without any compensation being  30 provided for him in respect of what is taken  31 compulsorily from him."  32  33 And I say that this is particularly apt when the  34 construction urged upon you by the Province is that in  35 the absence of clear words showing an intention the  36 property of the Indian people will be confiscated for  37 the benefit of others, and we say that that's  38 definitely not what the legislation should be read to  39 suppose.  40 And he says finally at page 188:  41  42 "The principle I have described is fundamental.  43 It is a constitutional principle in the British  44 sense."  45  46 Now, the B.C. Court of Appeal described the  47 "expropriation rule" in the following terms in the 25892  Submission by Ms. Mandell        1 B.C. Medical  Association case:  2  3 "I think the rule may be divided into three  4 parts.  The first is that the property of the  5 subject cannot be taken by the Crown without  6 some form of authorization.  The second is that  7 the authorization must be clear.  If there is  8 any ambiguity about whether the Crown may take  9 the subject's property, the authorization must  10 be construed in favour of the subject.  The  11 third is that, even if the authorization  12 clearly permits the taking of the subject's  13 property, there is a presumption, based on  14 justice and fairness, that the Crown will pay  15 compensation... That presumption can only be  16 rebutted by a clear contrary intention in the  17 authorization."  18  19 And I say that what all the out-of-statute  20 evidence is, if it's to be given any weight at all, is  21 really the last statement in the B.C. Medical  22 Association case.  It's evidence to rebut a  23 presumption, and we say that the presumption is that  24 there was no intention to extinguish.  It's not  25 stated.  It's certainly not implied.  We say by the  26 words used, and I'll get to that in a minute, there  27 has to be some clear contrary intention to move the  28 case in another direction.  And we say that we've  29 raised what Mr. Rush has done this morning in answer  30 to what we expect the Province will be raising on this  31 point.  32 I just wanted to note one other thing before  33 passing over the B.C. Medical Association case.  It's  34 not in the material, but I notice that one of the  35 considerations taken by Mr. Justice Lambert in  36 deciding that the legislation intended to deal with  37 the issue of doctors' fees was that the court noted  38 that there was a close proximity of the legislation to  39 the dispute in issue, and we say that the close  40 proximity is anything but what you have in this case,  41 where the pre-Confederation ordinances had, we submit,  42 at that time no direct relevance to the issue of  43 extinguishment.  Nobody put them together, and it  44 really wasn't until the Calder case advanced that we  45 first saw this being raised as an argument some -- I  46 don't know -- 50 or 60 or 70 years later, and now  47 we're being faced with it again, and that there is no 25893  Submission by Ms. Mandell 1            close proximity between  the statute which is said to  2 extinguish and the actual acts of extinguishment which  3 are being complained of.  Or even the theory of  4 extinguishment is not brought together until quite a  5 large number of years later.  6 We say that aboriginal title is fundamentally a  7 legal right.  Express words are required to show the  8 legislative intent.  Indirect abrogation of the right  9 is not enough.  And this is where I then refer to the  10 Western Countries case again and Lord Watson's  11 statement:  12  13 "...In order to take away the right it is not  14 sufficient to show that the things sanctioned  15 by the Act, if done, will of sheer physical  16 necessity put an end to the right, it must also  17 be shown that the Legislature have authorized  18 the thing to be done at all events, and  19 irrespective of its possible interference with  20 existing rights."  21  22 And in that case the act in question was silent with  23 respect to the respondent's rights.  24  25 "...the Privy Council found it impossible to  26 find from that silence an intent to terminate  27 the respondent's temporary right of  28 possession)."  29  30 The same presumption was applied in the Paul case,  31 and I have discussed that above.  32 And the reason for the strict statutory  33 construction and the application of these presumptions  34 was again explained in Estabrooks.  35  36 "...What these presumptions ensure is that a law  37 that appears to transgress our basic political  38 understandings should be clearly expressed so  39 as to invite the debate which is the life blood  40 of parliamentary democracy."  41  42 And we say that if aboriginal title in the  43 colonial period was to be extinguished, then the  44 democratic process should have brought the issue in  45 focus, debated it and something clearly stated so in  46 the legislation.  47 Now, the last presumption which ought to have been 25894  Submission by Ms. Mandell        1 considered by Mr.  Justice Hall we say ought to be  2 considered by this court is that there are particular  3 principles with respect to statutory interpretation  4 which apply in interpreting Indian treaties and  5 statutes, and these have been followed by our highest  6 courts repeatedly for a long time.  And the rule which  7 was stated in the cases:  "In approaching the terms of  8 a treaty," and this is Taylor and Williams, "the honor  9 of the Crown is always involved and no appearance of  10 'sharp dealings' should be sanctioned."  11 In finding that the hunting rights of the Micmac  12 were protected by the Treaty of 1752, Mr. Justice  13 Dickson said:  14  15 "Such an interpretation accords with the  16 generally accepted view that Indian treaties  17 should be given a fair, large and liberal  18 construction in favor of the Indians.  This  19 principle of interpretation was most recently  20 affirmed by this Court in Nowegijick...I had  21 occasion to say the following...  22  23 That would be nice.  24  25 "'It is legal lore that, to be valid, exemptions  26 to tax laws should be clearly expressed.  It  27 seems to me, however, that treaties and  28 statutes relating to Indians should be  29 liberally construed and doubtful expressions  30 resolved in favor of the Indians,'"  31  32 and quotes Jones and Meehan.  33  34 "' was held that Indian treaties "  35 construed, not according to the technical  36 meaning of [their] words...but in the sense  37 that they would naturally be understood by the  38 Indians.   39  40 And Nowegijick was interpreting a provision of the  41 Indian Act.  That was a taxation provision, and it was  42 interpreting a statute, and that's where this rule was  43 stated.  44 Simon was applying it with respect to a treaty,  45 the same principle of interpretation.  And we say that  46 the same canons of the construction applied to treaty  47 rights also applied when interpreting -- also apply 25895  Submission by Ms. Mandell        1 when interpreting  legislation purporting to extinguish  2 aboriginal rights.  A treaty confirms pre-existing  3 aboriginal rights and the rationale underlying the  4 rules of interpretation are applicable to treaty  5 rights equally to aboriginal rights.  And the fact  6 that the treaty confirms pre-existing aboriginal  7 rights was stated by the court in Simon, and I've  8 recited the passage.  And I could also at this point  9 ask you to note that the same was stated by our Court  10 of Appeal in White and Bob, where there the treaty  11 recognized and affirmed hunting rights which were  12 stated to be also recognition of pre-existing  13 aboriginal rights.  14 THE COURT:  Was that a Treaty 8 case, White and Bob?  15 MS. MANDELL:  White and Bob was a Douglas treaty.  16 THE COURT:  Douglas treaty.  Yes.  17 MS. MANDELL:  In 1985 the U.S. Supreme Court in affirming the  18 principle that an intention to extinguish Indian  19 rights must be clear and plain explained the rationale  20 underlining the canons of construction.  The court  21 considered the argument that certain treaties between  22 the Oneidas and the U.S.... ratified the state of New  23 York's unlawful purchase of the Oneidas' land in 1795.  24 And the court stated:  25  26 "The canons of construction applicable in Indian  27 law are rooted in the unique trust relationship  28 between the United States and the Indians.  29 Thus, it is well established that treaties  30 should be construed liberally in favour of the  31 Indians,...with ambiguous provisions  32 interpreted to their benefit,...'absent  33 explicit statutory language,'...this Court  34 accordingly has refused to find that congress  35 has abrogated Indian treaty rights...The Court  36 has applied similar cannons of construction in  37 non-treaty matters.  Most importantly, the  38 Court has held that congressional intent to  39 extinguish aboriginal title must be 'plain and  40 unambiguous and will not be lightly implied.'"  41  42 And this rationale has been adopted by our court in  43 Bartleman and Nowegijick.  44 We say that these principles form the backdrop  45 against which every legislative enactment relied upon  46 by the Crown must be interpreted.  So we repeat the  47 errors of Mr. Justice Judson, and I won't say it 25896  Submission by Ms. Mandell        1 again.  2 We say that Mr. Justice Mahoney in the Baker Lake  3 case misread the test for extinguishment and found in  4 the judgment of Hall -- found in the judgment of Mr.  5 Justice Hall and instead approved the test of  6 extinguishment by implication.  And we've already said  7 to you earlier that we think he erred.  8 The only other case which bears on this question  9 is the Bear Island decision, and this is Mr. Justice  10 Steele -- Steele's approach, which adopted the Baker  11 Lake approach in a sense.  And our critique of the  12 case is found at page 193 to 195.  13 THE COURT:  Of which volume?  Of this volume or —  14 MS. MANDELL:  Of this argument, page 193 to 195.  15 THE COURT:  Oh, I'm sorry.  16 MS. MANDELL:  We're just carrying right on.  17 THE COURT:  I'm sorry.  18 MS. MANDELL:  I would ask your lordship to read it.  I think  19 it's -- I think the critique is very -- it's self-  20 evident that at this point in the argument we say that  21 in Baker -- that if there isn't an intention expressed  22 to open up lands for settlement and in so doing  23 extinguish aboriginal title, you can't, as Mr. Justice  24 Steele did, argue that simply the intention to open up  25 the land for settlement constitutes an extinguishment  26 of title.  We say that it's just extinguishment in the  27 air and that it's ungrounded certainly in the honour  28 of the Crown, it's ungrounded in the statutory  29 construction that we've urged upon you, and that we  30 say that aboriginal rights don't simply vanish without  31 there being some applicable legal principle and that  32 there's simply none provided by Mr. Justice Steele,  33 and we say that he's just wrong.  34 At page 195 we summarize our analysis of his  35 judgment, that the position implicitly accepted by Mr.  36 Justice Steele is that as long as there's no Indian  37 resistance then the Crown can proceed in whatever  38 manner it may choose and over time the actions of the  39 Crown become legally entrenched and legally effective.  40 This approach is analogous to that adopted by Mr.  41 Justice Tysoe in Calder in finding that after the  42 Crown enacted land legislation the Indians became, in  43 effect, trespassers.  It is submitted that the Supreme  44 Court of Canada has clearly rejected this kind of  45 approach as being acceptable today in the judicial  46 determination of questions of aboriginal title and  47 extinguishment, and we rely upon Simon. 25897  Submission by Ms. Mandell        1  THE COURT:  What would you say  about trespass with respect to  2 land Crown granted to a private citizen?  You would  3 say that wouldn't be trespass either?  4 MS. MANDELL:  In the pre-Confederation period?  5 THE COURT:  Let's assume that pre-Confederation but under these  6 colonial ordinances a Crown grant of a piece of  7 territory was given to -- let's make it the worst  8 possible scenario -- given to a white man.  He goes  9 into occupation, starts to farm it.  You would say  10 that there wouldn't be trespassing there either?  11 MS. MANDELL:  Well —  12 THE COURT:  You say that the Indian with his aboriginal right  13 could ignore the Crown grant?  14 MS. MANDELL:  Well, we deal with exactly that situation in the  15 next -- in the next point of the argument.  16 THE COURT:  All right.  17 MS. MANDELL:  But if I can just summarize —  18 THE COURT:  I'm hung up on trespassing because I'm not sure it's  19 a helpful factor to induce into the discussion.  20 MS. MANDELL:  Well, let me take it on then.  I'd like to turn to  21 the next part, which is the analysis of colonial  22 enactments.  And, my lord, I don't intend to take you  23 enactment by enactment through.  24 THE COURT:  Where do you start there?  25 MS. MANDELL:  This is on page 204.  2 6 THE COURT:  Yes.  Thank you.  27 MS. MANDELL:  I don't intend to take you through them all.  They  28 roughly divide out into four major areas.  One is, as  29 Mr. Rush referred to this morning, acts which provide  30 for the establishment of governments and the  31 appointments of governors and the introduction of  32 English law, and he has already submitted to you that  33 it's our position that those acts brought in with them  34 English law.  There was nothing expressly stated about  35 the extinguishment of title, and to the extent that  36 English law was brought in, we say the common law  37 applicable to the recognition of aboriginal title  38 existed in the colony.  39 The second kind of enactments are ones concerning  40 land.  And if I could ask you to turn to page 211,  41 this is a land ordinance, the second of which was  42 considered by Mr. Justice Judson, and one which the  43 Province in its summary rests on to argue that it's  44 certainly an important part of the matrix of the  45 demonstration of the sovereign intent to extinguish.  46 And we note first that two months after this  47 proclamation Carnarvon wrote to Douglas regarding 25898  Submission by Ms. Mandell        1 Imperial policy to  compensate the Indians on Vancouver  2 Island and the mainland, and you heard submissions  3 about that this morning.  4 And then if you could turn to page 212, this is  5 one of the sections which is relied upon by the  6 Province, and the proclamation contains 14 numbered  7 declarations.  And you can see that it's not very  8 lengthy, but it is a discussion of the method to be  9 pursued with respect to the alienation and acquisition  10 of agricultural lands and of lands proposed as sites  11 for towns in the new colony of British Columbia and  12 certain other matters.  13 Now, one of the sections says, and I read:  14  15 "All the lands in British Columbia, and all the  16 Mines and Minerals therein, belong to the Crown  17 in fee."  18  19 And the Province argues that this is illustrative of  20 the lack of ability of the ordinance to recognize  21 Indian title.  22 And I wanted to take you back to page 167 for a  23 minute, of the argument, and remind you of the way in  24 which the -- a more expressed statement of the same --  25 to this same end was stated in the Queensland  26 legislation, which we submit is a much more expressive  27 idea, the fact that such a statement could take away  28 Indian title, where they said that "the islands were  29 vested in the Crown in right of Queensland freed from  30 all other rights, interests and claims of any kind  31 whatsoever."  And we say that, turning back to page  32 212, that if the expression that all lands in British  33 Columbia were to exclude aboriginal title and not to  34 be compatible with the -- both titles existing, as the  35 St. Catherines Milling case said, then they could have  36 done it, but they didn't.  37 Now, if you could go to page 214, we say that when  38 the Crown said that all the lands in British Columbia  39 and all the mines and minerals belonged to the Crown  40 in fee, they were stating what Mr. Justice Hall said  41 they were stating, which is simply a statement of the  42 common law, and that there -- the definition of Crown  43 lands as including Indian title and as burdened by  44 Indian title is reflected by a review of some of the  45 other ordinances which were passed in the same period.  46 And I refer you to an ordinance respecting Indian  47 reserves.  And just so you didn't have to copy it, 25899  Submission by Ms. Mandell        1 I -- or go to the -  did.  It's just to save us  2 having to get all the exhibits.  And you'll see that  3 Crown land is defined as being an Indian reserve or  4 settlement.  And we say that there is nothing magic  5 about the Crown stating that all lands and all mines  6 and minerals belong to the Crown in fee, that there is  7 within the language of other ordinances the argument  8 which we advance, and that is that it wasn't intending  9 to say that all interests -- by defining it as Crown  10 land all aboriginal interests are not included.  11 And I refer you to a second ordinance in the same  12 period, which --  13 MR. GOLDIE:  I'm sorry, I didn't quite get the point that you  14 are making with respect to the ordinance respecting  15 Indian reserves.  Are you saying that the definition  16 of Crown lands --  17 MS. MANDELL:  Includes Indian reserves.  18 THE COURT:  Doesn't that say any Crown Lands which happen to be  19 Indian reserves or settlements are such and such?  20 MR. GOLDIE:  That's what I've taken it to be, and I wanted to  21 make sure that my friend is taking another meaning.  22 MS. MANDELL:  I'm saying that —  23 THE COURT:  I think it says if anybody does any damage to Crown  24 lands which -- it says being Indian reserves, I think  25 which happen to be Indian reserves or settlements --  26 MS. MANDELL:  Well, I think —  27 THE COURT:  -- then certain things would happen.  28 MS. MANDELL:  There's no question that this is an act relating  29 to Indian reserves.  30 THE COURT:  Yes.  But I don't think it's a definition of all  31 Crown lands as Indian reserves.  32 MS. MANDELL:  Oh, it's certainly not a definition of all Crown  33 lands in the province, but what it does demonstrate is  34 that in defining Crown lands in the province the  35 Province also defines Crown lands as including Indian  36 reserves where there's no doubt that they're --  37 THE COURT:  You're saying that Indian reserves are said to be  38 Crown lands?  39 MS. MANDELL:  That's right.  40 THE COURT:  Yes, I think it says that.  41 MS. MANDELL:  Thank you.  42 MR. GOLDIE:  I hope there's no dispute about that.  All that a  43 reserve is in colonial days was Crown land which was  44 withdrawn from the pre-emption laws.  That's what  45 reserve meant in the colonial days.  They were always  4 6 Crown lands.  47 MS. MANDELL:  But there was also a recognition that as Indian 25900  Submission by Ms. Mandell 1            settlements there was a  co-existing Indian title which  2 we say underlined the Crown title, and by including in  3 the —  4 THE COURT:  Underlaid or overburdened?  5 MS. MANDELL:  Overburdened.  6 THE COURT:  Both, I suppose.  7 MS. MANDELL:  Definitely both.  The second is the game  8 ordinance, and I only here point out that by the game  9 ordinance certain selling, hunting and so on, and  10 possession of animals, "shall be construed to prevent  11 bona fide Settlers in Country Districts from killing  12 or getting such Game at any season for their own  13 consumption..."  And we say that as Indians clearly  14 hunted for their own consumption it is logical to  15 assume that the Crown in enacting this land use  16 legislation did not intend that it applied to Indians  17 in the exercise of their aboriginal rights but was an  18 instrument relating to land which applied to the  19 settler use only.  2 0 And I might remind your lordship at page 4 9 in the  21 argument advanced to you by Mr. Rush this morning that  22 in the notices which were published describing the  23 Indian Songhees Reserve title to the land was said  24 commonly to be known as the Indian reserve, and -- I'm  25 sorry, I'm just going to try and quote what was said  26 in the notice.  "Title to the said land commonly known  27 as the Indian reserve vested in the government."  And  28 Douglas described the title in the Indian reserves as  29 title vested in the Crown.  And we say that throughout  30 the period there was a recognition of the co-existence  31 of Indian title as being described generically as part  32 of the title of the Crown, and the provision which  33 vests the title in the Crown doesn't exclude  34 aboriginal title.  35 Now, we say, secondly, that in reviewing these  36 land legislative ordinances there is nothing  37 inconsistent with the co-existence of aboriginal title  38 and the Crown adopting a policy and a method to  39 provide an orderly scheme to alienate lands for  40 settlement.  Britain continued to direct that treaties  41 were to be concluded with the Indians.  The colonial  42 government could expect to acquire land available for  43 sale or settlement unburdened by the Indian title.  44 And I just wanted to remind you of the Cowichan --  45 again of the Cowichan petition, where the title was  46 purchased while aboriginal title had not been  47 extinguished, that is, land had been granted where 25901  Submission by Ms. Mandell 1            there had been no  extinguishment of aboriginal title,  2 and the settlers took their land and hoped and waited  3 for the extinguishment finally of aboriginal title.  4 And they, the settlers, were granted the land which  5 they were granted under a scheme to alienate lands for  6 settlement, which we say is perfectly within the vires  7 of the colony to conceptualize.  8 To argue, as the provincial defendant does in  9 their summary, that a statutory method to achieve a  10 system of land legislation extinguishes aboriginal  11 title is to refuse the reasoning of the Supreme Court  12 of Canada in Simon that extinguishment can take place  13 "in the air."  There is no bedrock of specific lands  14 here referred to.  You've got basically people --  15 you've got land legislation providing a system by  16 which land will be alienated, but you have for your  17 consideration no specific land grants which the  18 Province says, in fact, alienated land, and we say  19 that's contrary to Simon.  20 In fact, few, if any, grants were made in the  21 Gitksan-Wet'suwet'en territory until after  22 Confederation, and I in reviewing the evidence  23 couldn't find any, but I say "few" because maybe one  24 might come up somewhere.  The mainland was essentially  25 occupied by Indians.  Mr. Justice Hall in Calder noted  26 the political and social conditions prevailing in the  27 colony as described by Mr. Justice Tysoe.  28  29 "The first white child was born at Fort Langley  30 on the mainland on November 1, 1857."  31  32 The ancestors of the plaintiffs could and did  33 continue in the exercise of their aboriginal rights  34 without any impact on the ground to the exercise by  35 them of their rights by any of the land legislation  36 argued by the provincial defendant as having the  37 effect of extinguishment.  Nor, we've said, does the  38 land legislation on its face extinguish.  39 Now if I can address the point which you raised  40 about what about land grants.  Any inconsistency which  41 might arise between aboriginal title and the assertion  42 of Crown title may occur if pursuant to the statutes  43 Crown grants were granted to non-Indian people who in  44 fact sought to dispossess the plaintiffs' ancestors.  45 At that point it may be argued by the plaintiffs that  46 the British Columbia government did not have the  47 authority to make the grants in derogation of their 25902  Submission by Ms. Mandell        1 rights and the grants  ultra vires, or it might be  2 argued by the Crown that the grants which dispossessed  3 the Indians in their possession of their land  4 extinguished aboriginal title.  These arguments are  5 not made before this court regarding the legislation  6 in the pre-Confederation period.  And I say except  7 that if you find an implied intention to extinguish,  8 Mr. Rush has argued to you that such was outside  9 Douglas' authority and would be ultra vires on that  10 account.  11 The decision of the Supreme Court of Canada in  12 Smith addressed this issue.  By an 1844 act, which was  13 entitled "An Act to Regulate the Management and  14 Disposal of Indian Reserves in the Province,"  15 pre-Confederation, a law was -- this is another case.  16 They set up reserves, an act was passed to regulate  17 how some of the reserve land was to be disposed of, a  18 law was enacted to establish a method to survey and  19 sell reserve lands in New Brunswick to settlers.  Mr.  20 Justice Le Dain summarized its provisions.  21 THE COURT:  Just a moment, please, Ms. Mandell.  I think we're  22 going to change reporters.  23 MS. MANDELL:  I'm going to be 15 more minutes or 10 at the most.  24 THE COURT:  Yes.  All right.  We'll change reporters then.  25  26 (PROCEEDINGS ADJOURNED AT 7:05 P.M.)  27  28 I hereby certify the foregoing to  29 be a true and accurate transcript  30 of the proceedings transcribed to  31 the best of my skill and ability.  32  33  34  35  36  37 Leanna Smith  38 Official Reporter  39 UNITED REPORTING SERVICE LTD.  40  41  42  43  44  45  46  47 25903  Submissions by Ms. Mandell        1 (PROCEEDINGS  RESUMED AT 7:08 P.M. )  2  3 THE COURT:  Miss Mandell, why don't we say you can go to 7:30 so  4 you won't have to be quite so fast.  5 MS. MANDELL:  We are at page 216 and it's in the case of Regina  6 vs. Smith where the discussion of the 1844 Act is set  7 out.  I am sorry, Mr. Goldie points out that I am  8 talking about the Federal Court of Appeal's decision  9 and not the Supreme Court of Canada.  10 THE COURT:  All right.  11 MS. MANDELL:  That's right.  12 THE COURT:  All right.  Thank you.  13 MS. MANDELL:  A law was enacted to establish method to survey  14 and sell lands in New Brunswick to settlers.  Mr.  15 Justice Le Dain summarizes its provisions:  16  17 "The Act provided for the survey of reserves  18 and for the sale or lease of parts of them for  19 settlement, as well as for the appointment of  20 Commissioners in each country in which reserves  21 were -- "  22  23 It should be:  24  25 "situate 'for the purpose of -- '"  26  27 I don't know what that is.  "Looking after -- " sorry,  28 I don't know what that word is after "reserves."  29 THE COURT:  "Looking after."  30 MS. MANDELL:  31  32 "'looking after...and superintending the survey  33 and sale thereof as may from time to time be  34 directed by Lieutenant Governor to be sold  35 under the provisions of this Act, and also to  36 look after the interest of the Indians  37 generally of the Counties in which such  38 Reserves are situate, and to prevent  39 trespassing thereon.'"  40  41 And then the Act was replaced.  So through the Act,  42 and the provisions of it are set out at the page that  43 I've identified, there was provisions made for  44 surveying the reserves and for selling them to  45 settlers, the preamble of the Act stated that it was  46 desirable that more land be opened up for settlers and  47 there was basically a scheme set out which we say is 25904  Submissions by Ms. Mandell        1 somewhat parallel to  the Land Acts of British Columbia  2 where there was a scheme established to alienate  3 lands.  4 The Court held that the Act could not have  5 extinguished the Indian title as it was "a mere  6 adoption of a policy reflected in the Act of 1844 that  7 land in the Reserve should be sold to settlers."  And  8 we parallel that to the land ordinances which we say  9 is an adoption of a policy that land be sold to  10 settlers, and like the 1844 Act, prescribed a method  11 for so doing.  Mr. Justice Le Dain added that if lands  12 had been sold, and Letters Patent issued  13 extinguishment would occur.  He was not addressing the  14 question whether the grants would be ultra vires the  15 Province.  16 And so we say here that, and in answer to your  17 question, my lord, that you are not concerned with the  18 actual effect of a grant on the land which, according  19 to the Supreme Court in Simon if you are looking at  2 0 extinguishment that would be something which you  21 should consider.  You are concerned, however, with  22 Acts which permit, and as Mr. Justice Hall said, the  23 language is both permissive and it's also general,  24 which permit for a scheme of land alienation, the  25 actual grants of which and the effect of those grants  26 aren't before your lordship.  And we say that there  27 may be an argument and we contended for what the  28 positions might be if the pre-Confederation  2 9 extinguishment argument were framed in terms of  30 settlers with grants actually on the ground  31 dispossessing, we say that the Crown could rely upon  32 Smith and probably Simons and may be able to argue for  33 a extinguishment on that basis.  We on the other hand  34 would argue that the grants are ultra vires, but that  35 isn't what you are here dealing with.  36 And we say that this argument is applicable to all  37 of the land legislation relied upon the Provincial  38 defendant in the pre-Confederation period.  And we  39 cite quite a few of the ordinances that all pertain to  40 issues of preemption and land and granting of land and  41 more titles vesting in the -- more recitations of the  42 provision that the title vests in the Province.  43 Finally, we say that there is nothing inconsistent  44 with the existence of aboriginal title and the Colony  45 or the Imperial Parliament electing to set aside land  46 in the Colony as Indian reserves.  And if I could just  47 ask you to turn back to page 213, because this is 25905  Submissions by Ms. Mandell        1 the -- another feature  of the February 14 Proclamation  2 which continues throughout the land legislation which  3 the Province asks you to consider.  It's here stated  4 that anticipatory reserves of land for the benefit and  5 support of the Indian races will be made for that  6 purpose in all the districts of British Columbia  7 inhabited by native tribes.  And this changes, the  8 wording of this provision changes throughout the  9 period, but the basic text of it is that there is a  10 provision for the reservation of land and later the  11 prohibition against the granting of land which is so  12 reserved.  And we say that there is nothing  13 inconsistent with this provision and the existence of  14 aboriginal title.  15 And if I could ask you to turn to page 218.  In  16 the case of A.G. Ontario and A.G. Canada, which is the  17 Royalties case, Mr. Justice Idington said:  18  19 "A line of policy begotten of purdence,  20 humanity and justice adopted by the British  21 Crown to be observed in all future dealings  22 with the Indians in respect of such rights as  23 they might suppose themselves to possess was  24 outlined in the Royal Proclamation of 1763...  25  26 That policy adhered to thenceforward, by those  27 responsible for the honour of the Crown led to  28 many treaties whereby Indians agreed to  29 surrender such rights as they were supposed to  30 have in areas respectively specified in such  31 treaties.  32  33 In these surrendering treaties there generally  34 were reserves provided for Indians making such  35 surrenders to enter into or be confined to for  36 purposes of residence."  37  38 And Mr. Justice Idington stated that the policy was  39 intended to apply to British Columbia.  And you'll  40 recall the discussion by Mr. Rush this morning at page  41 30 in his argument wherein referring to the September  42 1848 Douglas to Barclay letter, Mr. Douglas  43 recommended that he would both set up a process to  44 conclude treaty and he also recommended, as he put it,  45 equally as a measure of justice and from a regard to  46 the future peace of the Colony that Indian fishing  47 village sites fields should be reserved for their 25906  Submissions by Ms. Mandell        1 benefit and fully  secured to them by law.  2 And we say whether reserves were set up before  3 treaty or whether they were set up after treaty is not  4 significant.  Of significance is that the Crown from  5 its earliest contact and compacts with the Indians set  6 aside lands as reserves.  And I can refer your  7 lordship to any of the basic texts - Native Rights in  8 Canada, or any of those beyond which starts the  9 reserve history as early as the Jesuits in Quebec or  10 the Quebec and Ontario area in the 1600s.  The  11 reserves afforded protection to the Indians and the  12 settlers against unwanted interference from each other  13 on the frontiers and also enabled missionaries and  14 teachers to educate and convert the Indians at a  15 convenient location.  16 The perceived responsibility to convert and  17 educate the Indians by the Church and the Crown has  18 been reflected extensively both in the evidence of  19 this case and in the general public domain.  And I  20 wanted to remind your lordship of Mr. Rush's  21 discussion at page 61 of his argument where he speaks  22 about the despatch from Lytton to Douglas on July 31,  23 1858.  And he was in -- again the two policies of  24 protecting through or the policy of protecting through  25 reserving lands and also securing title through  26 treaties was talked about by Lytton, and he said to  27 Douglas that the early attention should be given to  28 the best means of diffusing Christian religion and of  29 civilization among the natives.  And again, Lytton to  30 Douglas in 1858, which is at page 65 of Mr. Rush's  31 material, again stresses the convenience of the  32 placement of Indian people on reserves for  33 civilization and protection.  And I cite an  34 inelegeantly expressed ordinance to amend the laws of  35 evidence, which is an Act of the Colonial period which  36 demonstrate the perceived need of the Indian people  37 for the knowledge of God and for civilization as they  38 put it.  39 We say that reserves did not extinguish title, and  40 we'll argue this point in greater depth tomorrow,  41 but -- and I refer to the Santa Fe case here where you  42 have already seen that the courts there said that  43 there has to be an express intention that the reserves  44 extinguish title for that to take place.  And in fact,  45 the establishment of reserves provides a means for the  46 Crown to protect aboriginal title in those locations.  47 And I have already referred you to the ordinance 25907  eserves,  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submissions by Ms. Mandell        1 respecting Indian  and what that ordinance  did was to provide a very speedy method for dispute  resolution between Indians and settlers which wasn't  complicated and didn't require the use of the courts.  It was a convenient way to protect the Indians in  certain locations.  We say that the protective aspect of the Crown's  legislative domain over Indians also extended to  legislation in other areas and we've cited the  ordinances to protect violations of Indians graves and  the ordinances to prohibit the sale of intoxicants.  So in this whole general discussion with respect  to reserves, we say that the Colonial government and  the Imperial government together legislated with  respect to the honour of the Crown in its dealings  with the Indians and there was both Indians and Indian  lands which it legislated in relation to and that this  was within its authority and certainly there was  nothing inconsistent about legislation in this area  and the extinguishment of aboriginal title.  I have one of further point to make before 7:30  and it is with respect to the 1860 Proclamation.  Mr.  Justice -- sorry.  I was -- Mr. Rush referred to it  this morning and this Proclamation is made much of by  the Provincial defendant in arguing that it's a good  example, in fact the example that aboriginal title was  expressed in clear and plain language.  Again, you've  got your usual Indian reserve exemption, Indian  reserve clause.  And if I could turn you to page 221,  this is an ordinance which is a little bit more  detailed in its provisions for the preemption of  unsurveyed agricultural land in British Columbia, and  it does provide for the sale of unsurveyed  agricultural land by private contract.  Each of these  land ordinances seems to become more sophisticated and  this is a slightly more sophisticated version of the  one we've just looked at.  At page 221 the defendant Province argues that  assuming the criteria for extinguishment adopted by  Mr. Justice Hall in Calder the history of this land  ordinance, it should read, is proof of plain and clear  sovereign intention to extinguish.  They rely on two  main points.  First, they argue that the scheme of  providing land for preemption and settlement is  inconsistent with aboriginal rights.  And we have  already addressed this point above.  They further argue that the history surrounding 25908  Submissions by Ms. Mandell        1 this Proclamation  indicates that the existence of  2 aboriginal title in British Columbia was raised in the  3 consideration of the ordinance.  The Province states  4 in its summary that Captain Clarke, an officer with  5 experience in land matters in Australia, stated in a  6 report to the Colonial office his assumption that no  7 Indian title exists or if it does it's been  8 extinguished in British Columbia.  Further, Judge  9 Begbie forwarded to the Colonial office a report while  10 the land ordinances were under review which stated his  11 observation, and it should be his opinion, on Captain  12 Clarke's assumption with respect to aboriginal title  13 in British Columbia that it, aboriginal title, "is by  14 no means extinguished."  15 The Province argues that since both Douglas and  16 the Colonial office had considered both opinions on  17 the existence of aboriginal title in British Columbia  18 and as the Proclamation of January 4, 1860 is silent  19 on the question of aboriginal title, the existence of  20 aboriginal title in British Columbia was considered by  21 Britain and evidenced by the fact that it was not  22 included in the land ordinance, the title was  23 extinguished by that instrument.  24 With respect, we say the silence in the ordinance  25 on the question of aboriginal title does not  26 constitute a "clean and plain extinguishment"  27 according to the criteria of Mr. Justice Hall.  It was  28 Mr. Justice Hall's view that if the Colony intended to  29 extinguish aboriginal title:  30  31 "... it could have easily have said 'aboriginal  32 title to public lands in the Colony is hereby  33 extinguished.'  No such enactment... was so  34 stated."  35  36 Mr. Justice Hall's criteria makes sense in light of  37 the evidence which was apparently not before the Court  38 in Calder that the Colonial Office had two conflicting  39 opinions before it that aboriginal title existed in  40 British Columbia.  And I might here note that this is  41 not a new debate.  Mr. Rush referred to the debate on  42 the Maori land at page 35 and 36 of his submission  43 which the full force of the existence of aboriginal  44 title or not was debated too.  45 We say that if the British Parliament was intent  46 on extinguishing aboriginal title or putting to rest  47 the conflicting debate, what better opportunity than 25909  Submissions by Ms. Mandell        1 in stating so  expressly in the Land Ordinance of 1860.  2 And we say it had before it two conflicting opinions.  3 It apparently was before its consideration as the  4 Province argues and if it was something which needed  5 to be put to bed we say it could have so easily done  6 it by including the section which Mr. Justice Hall  7 suggests should be added.  And I might here add that  8 you'll recall that in 1861 the Colonial Legislature  9 asked the British government for funds to extinguish  10 aboriginal title one year later, and we say why didn't  11 the parliament then say rather than to say we have no  12 money, why didn't they say we've extinguished it?  It  13 all happened in 1860, one year earlier so you don't  14 have to worry about this.  And we say that this is the  15 reason why we have to have look for clear and plain  16 language and that is because if you -- if there isn't  17 clear and plain language, we don't know that that was  18 the intent of parliament, and it has to be so  19 expressed to divest Indian people of their rights.  20 I have three more minutes, my lord, and I think  21 that what I'd like to do in summary is to simply ask  22 your lordship to read the Ordinance by Ordinance  23 description of what went on in the Colony as we've  24 stated it between pages 204 and 244.  I've addressed  25 the main points which in our view are selected to  26 address the range of issues covered by the Ordinances.  27 And I wanted at page 239 to 244 to ask you to in  28 particular read the conclusions which I'll only be  29 repeated myself now if I were to summarize.  I would,  30 though, like to finally submit to you that the issue  31 of extinguishment before Confederation is by these  32 land Ordinances is a major point upon which the  33 Provincial defendant relies.  I'll be speaking to you  34 tomorrow about Union and the effect on aboriginal  35 title and the respective powers of the parliaments and  36 Federal and Provincial after Union.  It's our  37 submission that if aboriginal title survived the  38 Union, which we say it did, that there is no power in  39 the Provincial parliament or Provincial legislature  40 after Union to so extinguish aboriginal title.  And  41 you'll recall the admission made by the parties in the  42 Calder case as expressed by Mr. Justice Hall that the  43 Federal Government had done nothing after  44 Confederation to extinguish aboriginal title.  It's  45 our submission that if throughout all this period you  46 are to go beyond the statutes, Ordinances and  47 proclamations which you we urge you not to do, that 25910  that  there is is no  2  3  4  5  6  THE COURT  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submissions by Ms. Mandell        1 even if you do we say  obvious  clear intent to extinguish which rebuts the  presumptions which we say favour us that in the  absence of clear and express language these Ordinances  can be construed as affecting extinguishment.  All right.  Thank you.  I have a list here that  suggests that we are going to reconvene tomorrow at  9:30 and we're going to continue more or less as today  until 5:30 and then we're going to have a two hour  session in the evening from seven to nine.  All right.  Thank you.  Look forward to seeing some of you  tomorrow morning at 9:30 then.  Thank you.  (PROCEEDINGS ADJOURNED UNTIL MAY 9, 1990 at 9:30 A.M.)  I hereby certify the foregoing to  be a true and accurate transcript  of the proceedings transcribed to  the best of my skill and ability.  Laara Yardley,  Official Reporter,  UNITED REPORTING SERVICE LTD.


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